What We Mean By “Texas Tough”

Dear Supporters,

Let me tell you what we mean by “Texas Tough.” In Texas, it is legal for a jury to sentence a person to death even if he or she did not kill anyone. This is what we call the Law of Parties.

Last month, we shared the story of Michael Highfill, who is serving a life sentence for a murder committed by his friend. Now we want to share the story of another person sentenced under Texas’s Law of Parties: our client Jeff Wood.

In 1996, our client Jeff Wood agreed to drive his friend to a convenience store so his friend could rob it. Jeff told his friend not to bring a gun, and Jeff did not have a gun with him. While Jeff sat in the truck, his friend robbed the store and fired his gun. The clerk died. Jeff was sentenced to death as an accomplice under Texas’s Law of Parties. 

Jeff has had a nonviolent history inside and outside of prison. He also has a low IQ.  At his trial, a highly criticized psychiatrist known as “Dr. Death” and “the Hanging Shrink” testified that Jeff would be a future danger to society and so should be given the death penalty. (Vanity Fair hascalled Dr. Death “a traveling salesman for the Texas death penalty.”) At the time of Jeff’s trial, Dr. Death had already been expelled from the American Psychiatric Association and the Texas Society of Psychiatric Physicians. 

Since then, three of the jurors from Jeff’s 1998 trial have signed affidavits stating that they would have given Jeff a life sentence if they had known about the truth about Dr. Death.

Justice should mean that people are held responsible for their own actions. But justice is not what “Texas Tough” delivers. 

“Texas Tough” means that people are serving decades in prison—or, in some cases, have been sentenced to death—for crimes they had little or no involvement in. “Texas Tough” means that in Texas, it is legal to sentence people to death who, like Jeff, never killed anyone.

Read below for the second part of TDS Staff Attorney Kevin Trahan’s three-part Explainer on Texas’s Law of Parties. (If you missed it, you can check out part one on our website.)

With gratitude,

Burke Butler
Executive Director
Texas Defender Service

Texas’s Law of Parties, Explained

This is part two of a three-part explainer on the problems with Texas’s Law of Parties—and what can be done about it.

By Kevin Trahan, TDS Staff Attorney

Using the Law of Parties to Execute Those Who Have Never Killed

Since 2008, the Supreme Court has limited the use of the death penalty in the United States to “crimes that take the life of the victim.”[1] But there is a loophole: a person who has never killed anyone can be sentenced to death even if they never intended for a life to be taken, as long as they were a “major participa[nt]” in a murder and acted “with reckless indifference to human life.”[2] This is known as the Enmund/Tison rule, after the two cases from which it was developed.[3]

While Texas is required to follow the Enmund/Tison rule, Texas juries that have convicted a “non-triggerman” of capital murder under the law of parties are instead asked the following at sentencing when the prosecution seeks the death penalty: whether the defendant intended to kill the deceased or another, or anticipated that a human life would be taken.[4] This is known as the “anti-parties” instruction. The Texas Court of Criminal Appeals (“CCA”)—the highest appellate court in Texas for criminal cases—has held that this instruction comports with the Enmund/Tison rule, despite containing none of the language in that rule.[5]

Despite the CCA’s holding that the Texas sentencing procedure is consistent with Enmund/Tison, Texas juries are sentencing people to death—and courts are upholding those sentences—when no reasonable person could argue that the defendant was a major participant in the murder or that they acted with reckless indifference to human life.

            Take the case of Jeff Wood, a Texas Defender Service client who was convicted of capital murder and sentenced to death in Kerr County, Texas. Mr. Wood sat in a truck in the parking lot during a theft gone wrong but had very little to do with the charged offense—his co-defendant’s unplanned and spontaneous murder of the store clerk. Mr. Wood never armed himself and had asked his co-defendant not to bring a firearm with him. Mr. Wood’s co-defendant told police he had not planned to shoot the clerk; he held up a gun with his finger on the trigger, intending to scare the clerk, and the gun fired. After the gun fired, Wood entered the store shocked at what had occurred.

            Despite his minimal involvement in the theft and non-existent involvement in the murder, Mr. Wood was convicted of capital murder and sentenced to death.[6] The CCA upheld his death sentence notwithstanding his minimal culpability. Ironically, Mr. Wood’s case is similar to Enmund, in which the Supreme Court held that the defendant was ineligible for the death penalty; except Mr. Wood was an even lesser participant in the murder for which he was convicted than the defendant in that case, Earl Enmund. Whereas Mr. Enmund had armed those who participated in the killing, Mr. Wood asked his co-defendant not to arm himself, and whereas Mr. Enmund disposed of the murder weapon, Mr. Wood committed no other felonies. Further, the Supreme Court has held that participation in a robbery does not per se render someone’s mental state sufficiently culpable under the Enmund/Tison rule.[7]

The case of Rodolfo Medrano is similarly representative of Texas courts’ failures to implement the Enmund/Tison rule.[8] Mr. Medrano helped to manage money as part of a gang called the Tri-City Bombers in South Texas. On one occasion, he provided a number of weapons for fellow gang members, who he thought were going to steal some marijuana. He did not participate in the robberies, and at the time they occurred, he was in an entirely different city. Ultimately, six people were killed by the robbers. Mr. Medrano told police that neither he, nor anyone else, knew that anyone would be killed, and that the robbers did not follow the chain of command. He did not know that anyone was killed until the next day. Nevertheless, he was convicted of capital murder and sentenced to death. In analyzing Mr. Medrano’s mental state, the CCA stated that he did anticipate that a death would occur because he knew the gang members had demonstrated a “willingness” to kill. However, Mr. Medrano’s knowledge of the gang members’ willingness to kill arguably means he should have anticipated that a death would occur, not that he did so anticipate. So while the CCA did superficially address when Mr. Medrano anticipated that a death would occur, its actual analysis appears to have been conducted under an improper standard. Further, the court affirmed his death sentence with little analysis of his level of participation as it relates to the Enmund/Tison rule, other than to state that he was “an officer in, and armorer of, a gang that engaged in illegal activities”—a proposition having little to do with his level of participation in the offense itself.

In short, Texas courts have failed to fulfill their duty to implement the Supreme Court’s Enmund/Tison rule. As a result, Texas has sentenced people to death who did not kill anyone, did not anticipate that their co-defendants would kill anyone, and could not reasonably be called major participants in the murders for which they were convicted.

[1] Kennedy v. Louisiana, 554 U.S. 407, 447 (2008).

[2] Tison v. Arizona, 481 U.S. 137, 158 (1987).

[3] See Tison v. Arizona, 481 U.S. 137 (1987); Enmund v. Florida, 458 U.S. 782 (1982).

[4] Tex. Code Crim. Proc. art. 37.071, § 2(b)(2).

[5] McFarland v. State, 928 S.W.2d 482, 516–17 (Tex. Crim. App. 1996) (en banc), abrogated on other grounds by Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998) (en banc). See also Wood v. State, 18 S.W.3d 642, 649 (Tex. Crim. App. 2000).

[6] Ex parte Wood, No. WR-45,500-02, 2016 WL 4445748 (Tex. Crim. App. Aug. 19, 2016); Petition for a Writ of Certiorari at 26, Wood v. Texas, 140 S.Ct. 147 (2019).

[7] Tison, 481 U.S. at 150–51.

[8] Medrano v. State, No. AP–75320, 2008 WL 5050076 (Tex. Crim. App. Nov. 26, 2008) (unpublished).