                                 IN THE
                         TENTH COURT OF APPEALS



                                No.  10-12-00443-CR

        IN RE THE STATE OF TEXAS EX REL.  DAVID P. WEEKS


                               Original Proceeding



                                   OPINION


      In this original proceeding, the State of Texas, through David P. Weeks, the

Criminal District Attorney of Walker County, as Relator, seeks mandamus relief against

the Respondent, the Honorable Kenneth Keeling, Judge of the 278th District Court of

Walker County.  It arises out of the trial proceeding in the criminal prosecution of John

Ray Falk, Jr., the Real Party in Interest, for capital murder.      Falk is charged by

indictment with capital murder under Penal Code section 19.03(a)(4), which makes a

capital offense of the commission of murder while escaping or attempting to escape

from a penal institution.  TEX.  PENAL CODE ANN. §  19.03(a)(4) (West Supp.  2012). 

      Relator seeks mandamus relief because (1) Respondent has refused to submit a
law-of-parties instruction in the court’s charge under Penal Code section 7.02(a)(2); and

(2) Respondent overruled the State’s objection to the charge’s application paragraph for

party conspiracy under section 7.02(b), where the State objected that it requires the State

to prove that Falk anticipated the specific manner and means by which his co-

conspirator killed the victim.  See id. § 7.02(a)(2), (b) (West 2011).  For the reasons set

forth below, we deny the petition for writ of mandamus. 

                                        Factual Background

        The Court of Criminal Appeals recently affirmed the capital murder conviction

of Falk’s co-defendant, Jerry Duane Martin, who was tried separately.  See Martin v.

State, No.  AP-76,317, 2012 WL 5358862 (Tex.  Crim.  App.  Oct. 31, 2012) (not designated

for publication).  Briefly, and for background purposes only, the evidence in Martin’s

case reveals that Martin and Falk were inmates at the Texas Department of Criminal

Justice (TDCJ) Wynne Unit located in Huntsville, and, on the day in question, they were

assigned to work the Wynne Unit onion patch, which was outside the main perimeter

fence of the prison and adjacent to the City of Huntsville Service Center.  The Service

Center was, at that time, separated from prison property by only a chain-link fence in

some portions and a barbed-wire fence in others.  Martin and Falk disarmed a guard,

and Falk ended up with the guard’s handgun.  They fled onto Service Center property. 

        While guards, including TDCJ Officer Susan Canfield, were firing at Falk, Martin

got into a truck parked at the Service Center; the key was in the truck.  Canfield, who

was on horseback, advanced on Falk while firing at him with her revolver.  When

Canfield had expended her revolver’s bullets, Falk ran at her as she was trying to


In re The State of Texas ex rel.  David P. Weeks                                      Page 2
remove her rifle from its scabbard.  They engaged in a struggle for the rifle, but once

Falk jabbed his stolen revolver in her ribs, Canfield ceased struggling and Falk took the

rifle and backed away. 

        Martin then drove the truck straight toward Canfield and hit her horse and her

just as Falk backed away.  Canfield and the horse went up onto the hood of the truck. 

Canfield’s back and shoulders hit the windshield, and her head struck the roof. 

Canfield was then launched into the air and came down on her head, shoulder, and

neck.  After striking Canfield and her horse, Martin stopped the truck and Falk got in it. 

They drove off but were soon apprehended.  Canfield died from the severe injuries she

received from the impact with the truck.  See id. 2012 WL 5358862, at *1-4. 

                                      Procedural Background

        At the time of the filing of Relator’s petition for writ of mandamus, the evidence

had closed in Falk’s capital murder trial.         Respondent refused to submit a parties

instruction in the court’s charge under Penal Code section 7.02(a)(2).  A record excerpt

reflects Respondent’s belief that there is no evidence supporting a parties instruction

under section 7.02(a)(2).          Also, Respondent overruled the State’s objection to the

charge’s application paragraph on capital murder (escape) conspiracy under section

7.02(b).  That paragraph requires the State to prove that Falk anticipated the specific

manner and means by which Martin killed Canfield. 

        With the petition, Relator filed an application for emergency temporary stay,

which was granted.  Falk filed a “motion to dismiss, strike or summarily deny the

petition for writ of mandamus and to vacate the stay.”  In his motion, Falk complains


In re The State of Texas ex rel.  David P. Weeks                                     Page 3
that the petition fails to comply with many of the procedural requirements of Rule of

Appellate Procedure 52.  See TEX.  R. APP.  P. 52.  In a supplemental brief, Relator requests

that we implement Rule 2 and suspend the procedural requirements of Rule 52 that

Relator has not complied with.  See id. 2.  Using Rule 2, we suspend the procedural

requirements of Rule 52, and having done so, we deny Falk’s motion. 

        In a supplemental motion, Falk asserts that we must dismiss the petition for lack

of jurisdiction because the State seeks the death penalty and the Court of Criminal

Appeals has exclusive appellate jurisdiction of cases in which the death penalty has

been assessed.  See TEX.  CODE CRIM.  PROC.  ANN.  arts.  4.03 (West Supp.  2012), 4.04, § 2

(West 2005); see also id. art.  37.071, § 2(h) (West Supp.  2012).  We disagree and deny the

supplemental motion; the death penalty has not yet been assessed, and we have

mandamus jurisdiction over the judge of a district court within our court of appeals

district.  TEX.  GOV’T CODE ANN. §  22.221(b)(1) (West 2004).1

                 Standard for Mandamus Relief in Criminal Proceedings

        To be entitled to mandamus relief, the relator must show that: (1) he has
        no adequate remedy at law, and (2) what he seeks to compel is a
        ministerial act.  With respect to the second requirement, the relator must
        show a clear right to the relief sought.  A clear right to relief is shown
        when the facts and circumstances dictate but one rational decision “under
        unequivocal, well-settled (i.e., from extant statutory, constitutional, or case
        law sources), and clearly controlling legal principles.” 

In re State ex rel.  Tharp, ___ S.W.3d ___, ___, 2012 WL 5499867, at *2 (Tex.  Crim.  App. 


1 We also reject Falk’s equal-protection challenge under the U.S. and Texas Constitutions.  He cites no
authority for the proposition that the exercise of our mandamus jurisdiction at the State’s behest treats
him dissimilarly because, were he to be assessed the death penalty, he could not appeal to us.  Also, were
Falk to seek mandamus relief from us before the assessment of the death penalty, there would be no
jurisdictional impediment to our entertaining his request for mandamus relief. 


In re The State of Texas ex rel.  David P. Weeks                                                   Page 4
Nov. 14, 2012) (orig.  proceeding) (citations omitted). 

        No one disputes that the State cannot appeal directly the alleged trial court error

and thus has no adequate remedy at law.  See TEX.  CODE CRIM.  PROC.  ANN.  art.  44.01

(West Supp.  2012); see also Armstrong v. State, 805 S.W.2d 791, 793-94 (Tex.  Crim.  App. 

1991) (“The United States Supreme Court has held that a ‘judgment of acquittal,

however erroneous, bars further prosecution on any aspect ... and hence bars appellate

review of the trial court’s error.’”) ( quoting Sanabria v. United States, 437 U.S. 54, 69, 98

S.Ct.  2170, 2181, 57 L.Ed.2d 43, 57 (1978)). 

               Of course, mandamus “is not a substitute for and cannot be used to
        perform the office of an appeal.”  Bradley v. Miller, 458 S.W.2d 673, 675
        (Tex.  Crim.  App.  1970).  Thus, mandamus may not be used to give the
        State a right to appeal that was not granted by the Legislature in Article
        44.01 of the Texas Code of Criminal Procedure.  But the limitations in
        Article 44.01 on the State’s right to appeal are no impediment to the State’s
        use of mandamus to correct judicial action that is clearly contrary to well-
        settled law, whether that law is derived from a statute, rule, or opinion of
        a court. 

State ex rel.  Healey v. McMeans, 884 S.W.2d 772, 774 (Tex.  Crim.  App.  1994) (orig. 

proceeding). 

               An act is “ministerial” if it does not involve the exercise of any
        discretion:

               [A] “ministerial” act is one which is accomplished without the
           exercise of discretion or judgment.  If there is any discretion or
           judicial determination attendant to the act, it is not ministerial in
           nature.  Nor is a ministerial act implicated if the trial court must
           weigh conflicting claims or collateral matters which require legal
           resolution. 

               Examples are helpful in making clear the distinction between
           ministerial and discretionary acts.  Vacating an order is ministerial,
           as is forwarding the notice of appeal.  Issuing process under the


In re The State of Texas ex rel.  David P. Weeks                                         Page 5
           direction of a judge is ministerial.  Also, issuing or executing capias
           after mandate has issued is ministerial in nature.  Last, consideration
           of a motion properly filed and before the court is ministerial. 

        State ex rel.  Curry v. Gray, 726 S.W.2d 125, 128 (Tex.  Crim.  App.  1987)
        (opinion on reh’g) (citations omitted). 

                We have also described the ministerial act requirement as a
        requirement that the relator have “a clear right to the relief sought.”  State
        ex rel.  Rodriguez v. Marquez, 4 S.W.3d 227, 228 (Tex.  Crim.  App.  1999);
        Buntion v. Harmon, 827 S.W.2d 945, 947 & 947 n. 2 (Tex.  Crim.  App.  1992);
        State ex rel.  Wade v. Mays, 689 S.W.2d 893, 899 (Tex.  Crim.  App.  1985).  The
        relief sought must be “clear and indisputable” such that its merits are
        “beyond dispute.”  Wade, 689 S.W.2d at 897.  Thus, under the ministerial
        act/clear legal right requirement, the law must “clearly spell [ ] out the
        duty to be performed ... with such certainty that nothing is left to the
        exercise of discretion or judgment.”  Id. at 899 (quoting Texas Department of
        Corrections v. Dalehite, 623 S.W.2d 420, 424 (Tex.  Crim.  App.  1981), quoting
        Forbes v. Houston, 356 S.W.2d 709 (Tex.  Civ.  App.—Houston [1st Dist.] 
        1962)).  Even a trial court’s ruling on a pure question of law is not subject
        to writ review where that law was unsettled or uncertain.  Wade, 689
        S.W.2d at 898-900.  The act must be “positively commanded and so plainly
        prescribed” under the law “as to be free from doubt.”  Buntion, 827 S.W.2d
        at 949. 

State ex rel.  Hill v. Court of Appeals for Fifth Dist.,  34 S.W.3d 924, 927-28 (Tex.  Crim.  App. 

2001) (orig.  proceeding) (footnotes omitted). 

        The Court of Criminal Appeals has summarily stated that

        mandamus may lie to compel a trial court “to rule a certain way” on an
        issue that is “clear and undisputable” such that its merits are “beyond
        dispute” or when the “law clearly spells out the duty to be performed
        with such certainty that nothing is left to the [sic] discretion or judgment”
        whether that law is derived from “statute, rule, or opinion of a [superior]
        court.”  See Hill, 34 S.W.3d at 928 n.5. 

State ex rel.  Rosenthal v. Poe, 98 S.W.3d 194, 198 n.3 (Tex.  Crim.  App.  1999) (orig. 

proceeding) (brackets in original). 




In re The State of Texas ex rel.  David P. Weeks                                         Page 6
                                        The Court’s Charge

        In the jury trial of a criminal case, the “judge shall … deliver to the jury … a

written charge distinctly setting forth the law applicable to the case; … .”  TEX.  CODE

CRIM.  PROC.  ANN.  art.  36.14 (West 2007). 

        “[A] trial court is required to fully instruct the jury on the law applicable
        to the case and to apply that law to the facts presented.”  It is not enough
        for the charge to merely incorporate the allegation in the charging
        instrument.  Instead, it must also apply the law to the facts adduced at
        trial.  This is because “[t]he jury must be instructed ‘under what
        circumstances they should convict, or under what circumstances they
        should acquit’.”  Jury charges which fail to apply the law to the facts
        adduced at trial are erroneous. 

Gray v. State, 152 S.W.3d 125, 127-28 (Tex.  Crim.  App.  2004) (citations omitted). 

        Each side may request the inclusion of instructions in the court’s charge, and the

“court shall give or refuse these charges.”  TEX.  CODE CRIM.  PROC.  ANN.  art.  36.15 (West

2006); see Gigliobianco v. State, 179 S.W.3d 136, 144 (Tex.  App.—San Antonio 2005) (“In

fact, article 36.15 grants the trial court the discretion to deny a charge.”),  aff’d, 210

S.W.3d 637 (Tex.  Crim.  App.  2006).  After receiving objections to his charge, the judge

“may make such changes in his main charge as he may deem proper, … .”  TEX.  CODE

CRIM.  PROC.  ANN.  art.  36.16 (West 2006). 

                                            Law of Parties

        Relator’s first complaint concerns the trial court’s refusal to include a law-of-

parties instruction in the court’s charge under Penal Code section 7.02(a)(2), which

provides that a “person is criminally responsible for an offense committed by the

conduct of another if: … (2) acting with intent to promote or assist the commission of




In re The State of Texas ex rel.  David P. Weeks                                         Page 7
the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to

commit the offense; … .”  TEX.  PENAL CODE ANN. §  7.02(a)(2). “ In general, an instruction

on the law of parties may be given to the jury whenever there is sufficient evidence to

support a jury verdict that the defendant is criminally responsible under the law of

parties.”  Ladd v. State, 3 S.W.3d 547, 564 (Tex.  Crim.  App.  1999).  Relator asserts in his

petition that the State “has produced sufficient evidence that Falk acted with the intent

to promote or assist in the capital murder of Susan Canfield.” 

        Both Relator and Falk have provided us with the court reporter’s “rough draft”

reporter’s record2 of argument on Falk’s motion for directed verdict, where the

discussion veered into the law of parties.  Respondent plainly stated on the record that

he did not see any evidence to support the inclusion of an instruction under section

7.02(a)(2):

        … under 7.02 parties, 7.02(a)(2), I do not see any evidence where he - - this
        is talking about John Falk, Jr. This is the aiding, abetting part of the
        driving the vehicle into Canfield or her horse.  I don’t see any evidence
        where he solicited, encouraged it, directs it, aids it, or attempts to aid the
        other person to commit the offense of driving the vehicle into the horse or
        her.  So I don’t think you can go under 7.02(a)(2) of the parties statute. 
        The evidence, as I recall it, particularly from Mr. Isaacs - - and there was
        another witness who was under the shed, I can’t remember his name, but
        they testified, as I recall, that Mr. Falk had already gotten the rifle and that
        he was on down the road at the time of the collision of this vehicle and
        Mrs. Canfield, okay? 

        In an attempt to show that there is sufficient evidence that Falk acted with the

intent to promote or assist in the capital murder of Canfield, Relator filed a “rough


2 Relator filed two affidavits of the court reporter in which he states that the transcripts of the motion for
directed verdict, the charge conference, and the trial testimony of two witnesses are “rough drafts of [the]
testimony taken down during the trial of the State of Texas v. John Ray Falk, Jr.”


In re The State of Texas ex rel.  David P. Weeks                                                        Page 8
draft” reporter’s record of the testimony of Larry Grissom and Joe Jeffcoat, two of the

State’s witnesses.3 Relator did not file a “rough draft” reporter’s record of the testimony

of “Mr. Isaacs” or the other “witness who was under the shed.” 

        We conclude that Respondent’s assessment of the evidence to determine whether

it supports the inclusion of an instruction under section 7.02(a)(2) in the court’s charge

is not a ministerial act, but rather is an exercise of Respondent’s judgment and judicial

determination.  See Hill, 34 S.W.3d at 927.  And to the extent that there is a dispute about

the state of the evidence, we may not resolve it in an original mandamus proceeding:

        An appellate court may not deal with disputed matters of fact in an
        original mandamus proceeding.  Brady v. Fourteenth Court of Appeals, 795
        S.W.2d 712, 714 (Tex.  1990); Dikeman v. Snell, 490 S.W.2d 183, 186-87 (Tex. 
        1973).  When the issues before the trial court necessarily require factual
        determinations, the court of appeals abuses its discretion when it resolves
        those issues in an original mandamus proceeding.  Brady, 795 S.W.2d at
        716. 

Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 60 (Tex.  1991) (orig.  proceeding). 

        Accordingly, mandamus relief is not available on the trial court’s refusal to

include a law-of-parties instruction in the court’s charge under section 7.02(a)(2). 

                                           Party Conspiracy

        Relator’s other complaint is that the charge’s application paragraph on capital

murder (escape) conspiracy under section 7.02(b) erroneously requires the State to

prove that Falk should have anticipated the specific manner and means by which

Martin killed Canfield, and Relator requests that we enjoin Respondent from requiring


3 Relator also filed his summaries of the testimony of all the trial witnesses, but we decline to consider
this document.  See TEX.  R. APP.  P. 52.7(a)(2) (requiring the filing of “a properly authenticated transcript of
any relevant testimony from any underlying proceeding”). 


In re The State of Texas ex rel.  David P. Weeks                                                        Page 9
the State to prove that Falk should have anticipated the specific manner and means by

which Canfield’s death occurred. 

        Section 7.02(b) of the Penal Code provides 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. 

TEX.  PENAL CODE ANN. §  7.02(b). 

        The portion of the court’s charge at issue provides:

              You must determine whether or not the State has proved, beyond a
        reasonable doubt, four elements.  The elements are that:

            1.  in Walker County, Texas, on or about September 24, 2007, JOHN
               RAY FALK, JR.  joined a conspiracy with JERRY MARTIN to
               commit the felony offense of Escape; and

            2.  in an attempt to carry out this conspiracy, JERRY MARTIN
               intentionally or knowingly caused the death of SUSAN CANFIELD
               by striking her with a deadly weapon, to wit: a motor vehicle or by
               striking the horse she was riding with a deadly weapon to wit: a
               motor vehicle that in its manner of use was capable of causing
               death or serious bodily injury; and

            3.  the murder, if any, was committed by JERRY MARTIN in
               furtherance of the conspiracy, if any, to commit the felony offense
               of Escape; and

            4.  JOHN RAY FALK, JR.  should have anticipated that JERRY
               MARTIN would intentionally or knowingly cause the death of
               SUSAN CANFIELD by striking her with a deadly weapon, to wit: a
               motor vehicle or by striking the horse she was riding with a deadly
               weapon, to wit: a motor vehicle that in its manner of its use was capable
               of causing death or serious bodily injury during the commission of the
               felony escape, if any, which was the subject of the alleged conspiracy. 
               [Emphasis added.] 


In re The State of Texas ex rel.  David P. Weeks                                            Page 10
               If you all agree the State has proved, beyond a reasonable doubt,
        each of the four elements listed above, you must find the Defendant
        “guilty” of Capital Murder.  If you do not all agree, or if you have a
        reasonable doubt thereof, you will acquit the defendant thereof and next
        consider whether or not the Defendant is guilty of Felony Murder.4

        Relator’s complaint concerns the fourth element.  He asserts that it is clear error

to require the State to prove that Falk should have anticipated the specific manner and

means by which Martin caused the death of Canfield.  In short, Relator contends that

the fourth element of the court’s charge increases the State’s burden of proof and adds a

material element to section 7.02(b). 

        The “rough draft” reporter’s record of the parties’ objections to the court’s charge

reflects that, in response to the State’s objection to the inclusion of the manner and

means in the application paragraph’s fourth element, Respondent replied that it was in

the State’s “pleadings.”  Respondent’s counsel in this proceeding asserts in a reply brief

that the indictment alleges in pertinent part that

        on September 24, 2007, John Ray Falk, Jr., did then and there intentionally
        and knowingly cause the death of an individual, namely Susan Canfield,
        by striking her with a deadly weapon, to-wit: a motor vehicle and by
        striking the horse she was riding with a deadly weapon, to-wit: a motor
        vehicle that in its manner of use or intended use was capable of causing
        death or serious bodily injury, and the defendant committed the offense
        while escaping or attempting to escape from a penal institution.5

Respondent’s counsel concludes: “In view of the manner in which the State chose to


4The application paragraphs in the court’s charge on the lesser-included offenses of felony murder,
manslaughter, and criminally negligent homicide all contain the same allegedly erroneous element, but
Relator does not complain about them in this original proceeding. 

5The indictment has not been made a part of our record in this proceeding, but we have no reason to
question Respondent’s counsel’s recitation of its content. 


In re The State of Texas ex rel.  David P. Weeks                                              Page 11
indict Falk coupled with its request for a party conspiracy theory of criminal

responsibility, [Respondent] was called upon to craft a charge properly submitting the

case to the jury. … [ Respondent] has attempted to craft a charge responsive to the

allegations of the indictment, the evidence at trial, and [section] 7.02(b).”6

                The term “manner and means” refers to the actus reus of the crime. 
        Jefferson v. State, 189 S.W.3d 305, 316 (Tex.  Crim.  App.  2006) (Cochran, J.,
        concurring) (noting that manner and means is a "description of how the
        offense was committed."). …  The means of death may refer to the weapon
        or instrument responsible for the deceased’s death.  See Ngo v. State, 175
        S.W.3d 738, 746 n.27 (Tex.  Crim.  App.  2005).  Neither the manner (the
        actus reus) nor the means (the “instrument of death”) need to be agreed
        upon unanimously by a jury.  Id. (noting that the jury must be unanimous
        on the gravamen of the offense of murder, which is causing the death of a
        person, but the jury need not be unanimous on the manner and means);
        see also Jefferson, 189 S.W.3d at 315; Kitchens v. State, 823 S.W.2d 256, 258
        (Tex.  Crim.  App.  1991).  The jury need only unanimously agree that
        appellant caused the death of the complainant.  See Ngo, 175 S.W.3d at 746. 

Sanchez v. State, 376 S.W.3d 767, 773 (Tex.  Crim.  App.  2012); see also Pizzo v. State, 235

S.W.3d 711, 714 (Tex.  Crim.  App.  2008) (“[J]ury unanimity is required on the essential

elements of the offense” but is “generally not required on the alternative modes or

means of commission.”). 

        Based on Sanchez, Relator contends that if the State may convict a principal of

murder without proving the manner and means by which the result of the offense—

death—occurred, the State may convict a conspiracy party such as Falk without proving



6A person may be charged as a principal but, if raised by the evidence, convicted as a party under section
7.02.  See Swope v. State, 805 S.W.2d 442, 444 (Tex.  Crim.  App.  1991); Rosillo v. State, 953 S.W.2d 808, 811
(Tex.  App.—Corpus Christi 1997, pet.  ref’d) (“Although appellant was not indicted as a party to the
offense, the charge permitted the jury to convict appellant if the evidence reflected that he acted as a
party rather than the principal actor.”);  TEX.  PENAL CODE ANN. §  7.01 (West 2011); see also Nichols v. Scott,
69 F.3d 1255, 1262 n.9 (5th Cir.  1995).  And, “it is well-settled that the law of parties need not be pled in
the indictment.”  Marable v. State, 85 S.W.3d 287, 287 (Tex.  Crim.  App.  2002). 


In re The State of Texas ex rel.  David P. Weeks                                                      Page 12
the manner and means by which the death occurred. 

        Relator also argues that the plain text of section 7.02(b) and applicable case law

under section 7.02(b) do not require the State to prove that Falk should have anticipated

the manner and means. “[ T]he State does not have to prove that the accused intended

to shoot or kill the victim or intended that the victim be shot, as long as the evidence

established he conspired to commit the robbery and that he ‘should have’ anticipated

the murder as a result of carrying out the conspiracy to commit the robbery.”  Davis v.

State, 276 S.W.3d 491, 495 (Tex.  App.—Waco 2008, pet.  ref’d); see Ex parte Martinez, 330

S.W.3d 891, 902 (Tex.  Crim.  App.  2011) (“In this case, therefore, Applicant may be

convicted of capital murder as a party to the offense if the jury found that (1) Applicant

conspired with the group to commit robbery, (2) the murder occurred in furtherance of

the robbery, and (3) the murder should have been anticipated as a result of carrying out

the robbery.”) ( footnote omitted); Ruiz v. State, 579 S.W.2d 206, 209 (Tex.  Crim.  App. 

[Panel Op.]  1979). 

        No party to this proceeding has cited any authority that specifically supports the

inclusion in the fourth element that the State must prove that Falk should have

anticipated the specific manner and means by which Martin caused the death of

Canfield, nor has our research located any.  But there is likewise no specific authority

that the inclusion of the manner and means in the fourth element of section 7.02(b)

conspiracy is erroneous.  We thus turn to the applicable standard for mandamus relief

and must conclude that this issue is not “well-settled” law such that Respondent has a

ministerial duty to not include it in the application paragraph in the court’s charge on


In re The State of Texas ex rel.  David P. Weeks                                    Page 13
capital-murder (escape) conspiracy, despite our reservation below.7                      See Tharp, ___

S.W.3d at ___, 2012 WL 5499867, at *2.                Accordingly, we cannot grant Relator the

requested mandamus relief. 

                                              Conclusion

        For the above reasons, we deny Relator’s petition for writ of mandamus, and we

vacate our stay of the proceedings in the trial court. 




                                                         REX D. DAVIS
                                                         Justice

Before Justice Davis,
       Justice Lang,8 and
       Justice Scoggins
Petition denied
Opinion delivered and filed December 12, 2012
Publish
[OT06]




7 While we conclude that the law is not “well settled” on this specific issue, which appears to be one of
first impression under Texas law, we are of the strong opinion, based on the authorities cited above, that
Texas law does not support including in the fourth element that the State must prove that Falk should
have anticipated the specific manner and means by which Martin caused the death of Canfield. 
Irrespective of the indictment’s manner-and-means allegation, no statutory or case law supports its
inclusion.  Furthermore, two of the recognized criminal pattern jury charge books do not include it.  See
Comm.  On Pattern Jury Charges—Criminal, State Bar of Tex.,  Texas Criminal Pattern Jury Charges (Crimes
Against Persons) § C4.5, at 72-74 (2011); Elizabeth Berry & George Gallagher, 1 Texas Criminal Jury Charges
§ 2:170, at 2-6 to 2-7 (2010). 

8The Honorable Douglas S. Lang, Justice of the Fifth Court of Appeals, sitting by assignment of the Chief
Justice of the Texas Supreme Court.  See TEX.  GOV’T CODE ANN. §  74.003(a) (West 2005). 


In re The State of Texas ex rel.  David P. Weeks                                                    Page 14
