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neous charge under Alt~~at~za, and held it was egregioosly hamhd.State's PDR was granted to determine: (1) whether COA misapplied thelaw on concurrent causation; and (2) whether COA wrongly held thatunobjected-to error was reve~sible errol:Held: The cl~aree did not relieve the State from burdenof &Irovi~l_e tnem ren element necessary to conviction as a !arty,or authorize the inry to convict Appellant only as a urincioal,and as sucl~, was not egregio~~slv harnIf111. The appkation paragxphauthorkd the juryto convictifit found beyond armonable doubtthat Appellaot, acting either alone or ~4th the co-shooter, intentionally orknowingly caused the death of the victm by sl~ooting 11im with a thearm,or that Appellant intended to cause serious bodily injury to the victim byshooting him with a firearm. Immediately before the application paragraph,the ju~y wm given XI abstract i~~st~uction that stated in part: "AUpersons 2u.e parties of an offet~se who are pmwn bepnd a rmonnMedoubt to be guilty of acting together in the co~nmissio~~ of the offense."The charge vent on to define criminal responsibility by parties, and statedtl~at mere presence alone will not made one a party to ;u~ offense. CCAreasons that use of the ph~xe "acting together'' in the application pawgraph was a reference to the abstract portion, which equates "actingtogethel" with "party." "Party" upas defined in the abstract by tncking theappropriate statutoly la~guage. Tlms, the charge connected "actingtogetl~er" with the con~plete definition of "criminal responsibility" includingthe required cdpable mentd state, and as such did not relieve theState of the burden of proving the rtrens rea elenlent and aUow Appellantto be convicted as a principal. There was no egregious harm, thus State'ssecond ground is sustained. Judgment is reversed and ren~antled to COAso lhat it may address Appellant's ren~aining point of elml:MANDAMUS OPINION:MANDAMUS WILL NOT LIE WEN ACT SOUGHT TO BE COM-PELLED WAS NOT PURELY MINI~RIAL: State ex MI. Bill Hill,Relatot; u. Ffph Cornst of Appeals, No. 73938, I\lmdamus Appealfrom Dallas County; Reversed, 1/12/01; COk Relied Granted (111 reBeck, 26111553 -Dallas 2000); Ophuon: Meye~el's (m~animous)The real partyininterest, Beck, as convicted of sexnal ma111tof a child by a juq, ml~ich gave him 10 yrs and recommended probation.He appealed, and u7as released on bond, After violating bond conditions,the t~ill court refused to again release him, r~~ling that because Beck hadbeen convicted of a 3g offense he was not eligible for at1 appeal bondunder the term of article TCCP 44.04(b). Ile then sought mandanlusrelief in COA, which held that kt. 44.04(b) is uncoastit~~tional. The Statethen msaught mw~da~ios relief in CU.bond pending an appeal fron~ a felony comiction if he has been sentencedto ten or more years of conOl~e~ilent or if he has been convicted ofa 3g offense. rat he^; such defendants "sl~all i~nmediately be placed in custodyand tl~e bail discharged." COA agreed with Beck that 44.04(b) usas~mconstih~tiona as applied to lun~. COA reasoned that when a defendantconvicted of a 3g offense is awarded co~mnunity supe~vision he is placedin the position of choosing to: (1) not appeal Ids conviction in order toavoid incarceration pending the appeal, or (2) appeal his conviction andren~ain incarcerated until the disposition of his appeal. COA held tlusschenie coold cldl such defendant's decision to exercise his right toappeal. Accordingly, COA held Beck mu entitled to relief and ordered thetrial cou~t to consider il~e merits of Beck's application br bond pendingappd. CCA determines this ruling vw incorrect. A COA abuses its discretionin gmnting n~andan~us $Relator fads to den~onstmte in COA that:(1) he has ao other adequate legal remedy; and (2) under the relemntfacts and law, the act sougl~to be compelled is purely niinisterial. COAabused its discretion in issuing the writ hi tlus case beca~~se the act so~~ghtto be compelled was not ministerial. A ministerial act is one which doesnot in olve my discretion. CC4 has also described the ~niniste~ial actrequircn~ent as a requirement that the relator ha\ae "a clear right to therelief so~~gla." Here, COA held that trial court had a ministerial duly tohold 44.04(b), as applied to Beck, unconstitationd. But s11c11 holdingwould require the exercise of judicial discretion, particularly in light ofthe fact that the constitutionality of article 44.04(b), as applied in the circ~~mstancespresentetlin theinstant me, was an issm of fit impression.Certainly where the law is equivocal or unsettled, it ca~not be said thereis a "clear legal righr' thereouder so as to jmtii manda~lls relict Reliefis conditioadly gw~ted. CC4s practice is to withhold issuance of writ toallow COA to conform its actions to tlus decision. [Note: CC\ makcs nodetermination of merits of statute's constitutionality]DEATH PENAITY HABEAS CORPUS:NEW llUAL GRANTED WHERE COUNSEL FAILED M REQUESTINSIRUUIONS ON EXIXANEOUS OPPBNCES: EX P m WL4-GO RANGBL VARELAS, No. 73,632, from Galvestoo Coonty; ReliefGra~~ted, 1/31/01; Opinion: IIollaod, joined by hleye~s, Price, JohnsonPr Holcomb; Dissent: KeUer, joined by Keasler; Dissent: Womack, joinedby Keller 8: Keasler; Dissent: Keasler, joined by IIenreyApplicant \'as co~~victed of killing lus 2-)T-old stepda~ightermd sentenced to death. His co~~viclion rvas alOrmed io 1997, in anunpublished opinion. The victim had been kicked or hit so forcefully inthe abdon~en that her heart was tor11 in four places, and she had beenphysically abused for 6 weeks prior to her death. There was no eyewitnessevidence as to who u7as the pelpetratol: The State introd~~ced e%dence of prior bad ace committed by Applicant against the victim asproof of lus state of mind, intent, relationship and motire: he had dunkedher in a swimn~i~~g pool, thumped her head, poshed her with his foot,made her sit still on a co~~ch for 2 horns, and had hit her the night beforeher dcath. Applicant's defense uras illat the victim's motl~cr had comn~ittedtlie offense. The &straneons offefeoses introduced to show a pattern ofabuse, were crucial to the State's case. However, trial co~~nsel failed toreqnest any instmctions, either burden of proof or limiting iostmctio~~s,e\w~ though counsel had remarked during pretrial henrings that suc11instmctions mere appropriate. In tllis urrit Appplicmt con~plai~s lus tdalattorney uras ineffective for failing to request ju~y instr~~ctions regardingextraneous offenses at the guilWim~ocence portion of trial.Held: Trial counsel was ineffective for failine to requestjury ii~structions on the hnrden of ?roof for consideration ofextraneous offenses, as weU as limitine instructions. UnderHarrell, 88411154 (CU 1994), CCA held that the j~uy should be i~istructednot to consider extraneous offenses unless jurors iielieve beyond areasonable doubt that the defendant conu~utted the act. Tn illitchell,93111950 (CCA l996), CCA held that if the defendant requests ;u~instmctionon the standard of proof required for admining estrancous offensesheis entitled to the instn~ction Hence, in this case, had counsel requestedthe instruction, it shoultl have been given. Moreover, had he requesteda huiting inst~~~ction, the trial court sho111d haw inst111cted juro~s notto consider tl~extra~~co~~s offense evidence ~~nless they belinrd beyonda reasonable doubt that the defendant had committed those offenses.George!, 8901173 (CCA 1994). Trial co1111se1 s~~bnutted an aflidavit staling1 34 1 VOICE FOR THE DEFENSE 1 \N\NW.TCOLA.COM I -CH 200 1