The following is a breakdown of the Law of Parties, showing the arbitrary nature in which it is being used, and how it was improperly applied against Kenneth Foster. It is being distributed as part of a press packet by the Save Kenneth Foster campaign.


The following is a legal analysis of the Texas Law of Parties, specifically in relation to capital murder cases. In the wake of all the media attention geared towards DNA and mental competency issues, inmates with other legitimate innocence claims are being unjustly sentenced and forgotten about. People sentenced under the Law of Parties are among such claims. This analysis will outline the unconstitutional and unjust methods that the Texas Law of Parties incorporates, utilizing the case of Kenneth Foster, Jr., a Texas death Row inmate, in examination of this law.



Section 7.02 of the Texas Penal Code outlines the following:

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 persons to commit the offense” or “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.”

Article 37.071(b)(2) of the Code of Criminal Procedures permits the infliction of the death penalty only if the jury believes beyond a reasonable doubt that the defendant “intended to kill the deceased or another or anticipated that a human life would be taken.”


The US Supreme Court held that imposition of the death penalty on a person who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend to kill violates the 8th and 14th Amendments of the US Constitution. (Edmund v. Florida 458 US 782, 1982)

Five years after the Edmund decision the Supreme Court created an exception to this general rule for those guilty of a murder that occurs in the commission of a felony who do not kill or intend to kill, but who have major personal involvement in the felony and display a reckless indifference to human life. (Tison v. Arizona, 481 US 137, 1987)


The Delaware Superior Court observed:

“Major participation and reckless indifference to human life are more likely to be found where an accomplice defendant is present at and before a killing which involved considerable deliberation and the killing is preceded by physical or psychological abuse of the victim, including assault, torture or other acts of cruelty. Such a finding is less likely where the killing is sudden or impulsive and it is unclear that the defendant actually caused the victim’s death.”

The application of Texas Penal Code 7.02, in combination with Texas Code of Criminal Procedures Article 37.071(b)(2), is unjust and unconstitutional because it permits the death penalty to be imposed for complicity in a capital crime without requiring a finding that the person intended to kill or that he was a major participant in a crime where he showed reckless disregard for human life. In other words, neglecting to anticipate another actor’s commission of murder in the course of a felony is all that is required to make a Texas defendant death-eligible, thus immensely lowering the standard the US Supreme Court has set. This is allowing the death penalty to be applied in a most immoral and liberal way.


The State of Texas’ use of the conspiracy statute offends the 8th Amendment in the following ways:

A) It permits the imposition of the death penalty for a mental status no greater than negligence

B) The use of the substantive penal offense of conspiracy fails to meet the requirements of death eligibility under Edmund and Tison

C) It violates the Due Process Clause of the 14th Amendment by permitting one to be convicted under a conspiracy statute never alleged to have been proved.

A and B explained:

The court’s instructions employing Section 7.02 permits the jury to return a capital murder verdict of guilty if it merely believes that one acted only in furtherance of a non-capital offense, without any requirement that there be an intent to kill. This transforms felony murder to a capital offense, contrary to Texas statutory law. In some cases a jury was required to find only that the shooting was done to facilitate a robbery, an act which engulfs all forms of homicide including manslaughter, negligent homicide and even accidents. Because this instruction failed to narrow the class of death-eligible persons the jury was permitted to make a person death-eligible even if they believed that he had no intent to kill. This application of Section 7.02 violated the 8th Amendment proscriptions to the contrary. Rather than narrowing the class of murders eligible for the death penalty, the trial court’s instructions to the jury expanded the application of the death penalty to include defendants guilty of nothing more than neglecting to anticipate the actions of codefendants.

C explained:

While the State charges a person with capital murder the jury was instructed to convict if it believed that the defendant was guilty of the distinct but uncharged criminal offense of conspiracy. Permitting the state to charge one crime but instruct the jury on another violates the US Constitution in two important respects.

1) The substitution of a new offense at the jury instruction stage as a mechanism for conviction permits the state to prosecute a person without giving the accused fair notice of the nature and cause of the accusation against him.

2) It precludes the ability of the defendant to prepare to meet the State’s evidence.

The 6th Amendment of the US Constitution provides that “in [all] criminal prosecutions, the accused shall enjoy the right…to be [informed] of the nature and cause of the accusation.”

Furthermore, mere status as a party is not by itself a crime, but status as a conspirator is prohibited as an offense under Section 15.02 of the Texas Penal Code. Thus, when the State accuses a person of an offense, then proves complicity as a party to that offense, no new offense has been introduced. However, when the state accuses a person of an offense, then proceeds on the theory that the accused is guilty of conspiracy, then the State is seeking conviction for the crime of conspiracy when it has wholly failed to allege that crime against the defendant. For these reasons, the judgment in this case is contrary to law clearly established by the US Supreme Court and the 6th Amendment, and involved an unreasonable application of such law to the facts of the case.

While conspiracy offends the 8th Amendment in the three ways pointed out in A, B, and C, two major violations exist:

1) There was no major requirement that the jury find that Kenneth Foster, Jr. was a major participant or displayed a disregard for human life so reckless that it can be equated with any intent to kill. On the contrary, the jury was specifically told that it could render one death-eligible even if it found that he had no such intent. By employing the conspiracy liability statute, the State is able to make a person death-eligible on nothing greater than a negligence standard—that the defendant should have anticipated that his conspirator would in the course of any planned felony, intentionally kill another person. Negligence is the least culpable of mental state in criminal law. In fact, authorizing a jury to sentence to death a person found guilty of merely failing to anticipate his accomplice’s actions is not even a homicide under State law.

2) In a hypothetically worse care scenario the crime at issue in Foster’s case would be a conspirator’s failure to anticipate his confederate’s decision to kill the person they had planned to merely rob. Such a crime is punishable under the laws of Texas as conspiracy—a non-capital offense. Hence, the court, need look no further than well established statutory law to conclude that the death penalty for a statutorily non-capital offense violates the 8th Amendment.

Even in such a hypothetical situation such a defendant is guilty of conspiracy under 15.02 of the Texas Penal Code, a non-capital crime. Notwithstanding State law, the failure to anticipate an accomplice’s decision to intentionally kill a person, even were it deemed a form of homicide, violates the 8th Amendment because the death penalty is disproportionate to such culpability.

The Texas death penalty is supposed to be reserved as a sanction for the most heinous murders. However, Texas wishes to execute Foster based on inferences about what might have happened the night Lahood was killed. There has yet to be proof beyond a reasonable doubt of Foster’s guilt of capital murder, since for every inference the State uses to support a theory of guilt, an equally reasonable inference leading to innocence exist. If Foster is not granted judicial relief, he will be executed for a crime about which it is only truly known that he was at the scene. The precedent set will be that Texas can use conjectures and guesses, contrary to the standard of proof beyond a reasonable doubt, to achieve convictions under Section 7.02(b) of the Texas Penal Code. This will surely not be the last unjust death sentence handed down on flimsy evidence if Foster is executed. However, if the State of Texas is successfully challenged to adhere to basic standards of justice, not only in the courts but by the public, men and women will no longer be put to death simply for being at the scene of a crime. It is essential to justice that this challenge is undertaken.

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