*1 726 police
cover officer. As both and, indeed, The difficulty watched the impossibil- movie, the placed defendant his ity hand on the establishing per a se rule in cases portion of the officer’s trousers covering his appellant’s such can as be illustrated best genitals. Citing Green v. 566 by example. can be little There doubt that (Tex.Cr.App.1978), 578 which held that a participating a convertible automobile open commercial establishment business parade public place. down street is a main proof place, is sufficient public we refus- parade spectators “have access” to ed to reverse for failure trial court to interior of the because vehicle are able charge jury public on place. in Resnick However, to see the interior auto. traveling high same at speed auto at Appellant’s was not a auto commer night public public on a not be a road depending upon cial venture customers to place.5 come inside. no showing There was case, road, present while traveling appellant’s down the record does not support appellant’s auto was the assertion that public accessible to the or a sub vehi- “public cle was a group place.”6 stantial We Without such public. find noth support, appellant’s in the conviction cannot record which would lead us to auto, stand. appellant’s conclude that as it traveled Road, public on Lake place June was a as judgment reversed and reformed
defined statute. acquittal. to show an today Our decision does not establish per se rule holding that a vehicle travel public public on a place. road is not a question is a
This of fact fact find However,
ers. when the State adduces no
evidence of public appellant’s nature of
auto, then the State failed as a matter of
law to establish the constituent elements of alleged. DOTY, Appellant, Clarence Earl vehicles, Motor capable high speeds complex
across highway sys- and diverse Texas, Appellee. The STATE of tems, “unique” have often enjoyed positions 56429. No. legal writings. Federal Constitutional issues, probable such as cause and reasona- Texas, Appeals of Court of Criminal searches, bleness of upon warrantless turn No. Panel 3. the facts and surrounding circumstances 27, 1979. June defendant’s Coolidge automobile. v. New 443, Hampshire, 91 U.S. S.Ct. Sept. Denied Rehearing En Banc (1971); L.Ed.2d 564 Maroney, Chambers v. 399 U.S. 26 L.Ed.2d S.Ct.
(1970). Here, also, appellant’s whether ve-
hicle, Road, itas traveled June on Lake place
a public depends on the surrounding
facts and circumstances. These circum-
stances must be established
the State.
mind,
Supportive
examples
5. Several
include but are not limited
come to
such
facts
vehicle, (2)
(1)
speed
as vehicle with
traffic and
“tinted” windows or recreation
obstructions,
conditions,
(4) lighting
pulled.
(3)
al vehicles with
road
curtains
These sur
conditions,
rounding
(5)
circumstances must be
intended use of the vehicle
adduced
S.,
operator;
the State.
of which should be aimed
See Katz v. U.
389 U.S.
all
S.Ct. 507,
(1967);
proving “public
compare
place”
as defined
statute.
L.Ed.2d 576
Brit
at
(Tex.Cr.App.1979).
ton v.
Before TON, JJ.
OPINION DAVIS, Judge. W. C. cap-
Following a conviction for punish- jury where a assessed ital murder confinement, twenty-eight years ment at grounds appellant brings forward nineteen of error. error, appellant ground
In his initial indictment challenges sufficiency of the attempted capital the offense of Appellant indictment argues murder. alleg- it fundamentally defective because solicitation, omitting the only es amounting to more attempt: act of preparation, failing to effect than mere but of the intended offense. commission Sec. 15.01. reads as follows: indictment unlawfully, “. Faye Doty, Linda employing the said defendant was of remu- for remuneration and Bobby by knowingly neration L. Curtis intentionally offering one thousand ($1,500.00) five hundred dollars money of United of America States paid L. Curtis Bobby kill shoot- Faye Doty Linda shotgun . .” ing her with a sawed-off added) (Emphasis hire” indict- Clearly, is a “murder this for ment; attempted capital an indictment for provision “employment” murder under 19.03(a)(3). V.T.C.A. remuneration under Sec. 19.- Murder for minimum, involves, three 03(a)(3) at a indi- (3) (1) principal, (2) agent, viduals: individuals victim. The interaction of these simple. principal hires very a relation- agent such victim. In principal ship, required of the Kerry Dallas, P. Fitzgerald, appel- for employ- agent. hiring Once lant; Austin, Vollers, Jim of counsel. consideration ment “contract” is made and Wade, Henry prepara- Atty., passes, M. Dist. H. is more than mere John Hagler, fact, em- Gerald Banks and John- James K. tion. once such a contract son, Attys., Dallas, exists, completed Asst. ployment principal Dist. Hut- Robert tash, Austin, capital murder Atty., guilty State’s State. his role and depending appellant’s ground on which is contained in agent. success of his error The issue number four. therein presented sufficiency is the of the evidence Therefore, language if the attempted cap- support the conviction
indictment indicates or the existence Appellant urges that there is ital murder. “employment contract,” of this it sufficient adduced variance between the evidence *3 ly alleges principal appellant — allegations and the in the indictment. We going beyond preparation. Such an agree. must, allegation however, be more than a alleges beyond The indictment as the act promise pay to in the future. In Hobbs v. preparation, payment money appel- from State, 548 (Tex.Cr.App.1977), S.W.2d 884 lant to an officer. The undercover State we following language held the insuffi then How- obliged prove payment. to cient: ever, testimony police of the undercover Joyce “That Hobbs on or about the 25th payment officer shows no was made. At day July, A.D. ... did point, one the officer testified as follows: then and there attempt knowingly to “Q. you earlier that he And testified Hobbs, James Leon money on had a wad of him? promising promis- remuneration wit: Yes, sir, A. that’s correct. pay Virgil McCuller $100.00 Q. Money far in of a thousand excess by shooting said James Leon Hobbs dollars, didn’t him he? gun.” with a Yes, A. sir. While a future pay exchange for the murder of an individual is within Q. give you he cent? And didn’t one Code, V.T.C.A. 19.03(a)(3), Sec. No, sir, A. he not. did Hobbs indictment allege any does not acts Q. shot- give you He didn’t a sawed off by the employer, preparation other than gun did he? pay in allegation the future. Such an is not No, sir, A. he not.” a attempt. testimony was: point, At another Sec. 15.01. “Q. ... he anything didn’t do case, appellant’s the indictment money giving you any about out “ language alleged appellant ‘was em- front? ploying Curtis,” Bobby remuneration’ L. No, sir, any. give A. he didn’t me which present existing indicates a and em- Q. cent, Not a did he? ployment agreement beyond prom- future pay. ise to language No, This indicates that A. sir.” appellant had acted in some manner to cre- argues appellant provided The State ate a contract to have the victim killed. certain ad- photograph of the victim and Reading further, alleges the indictment dresses, beyond prepara- and these are acts consideration for this contract in both the aspect tion. The of murder remuneration past and paid future tenses: “. and must be for hire is an essential element and Thus, to be Here, alleged payment proved. the State alleges indictment employ- contract of attempt and thus as the act of criminal whereby ment the victim was to be killed imposed upon itself the burden to establish payment by appellant as an act so, Having to do the evi- payment. failed beyond Therefore, mere preparation. while support dence adduced is insufficient indictment, not a allegations model these allegations in the indictment. Commons satisfy V.T.C.A. Penal Sec. 15.01 and (Tex.Cr.App.1979); S.W.2d 19.03(a)(3) sufficiently allege at- (Tex. Armstrong v. tempted capital murder. Cr.App.1978).
Having
judgment
prosecution
determined the indictment
reversed
sufficient,
S.,
dispositive
we turn to the
issue
v. U.
437 U.S.
ordered dismissed. Burks
used,
e.
(1978);
ceased)_by_(method
98 S.Ct.
sources allege an act that of the need was aware CLINTON, Judge, concurring. preparation to more than mere amounts general rule is that an indictment commission of but fails to effect tends which uses language the same similar and, hiring fur- a murderer offense statutory definition of the offense is ther, to meet that thought the act precisely sound, 21.17, V.A.C.C.P., basically Art. but requirement, to-wit: the sources cited in note 1 reflect different offering intentionally “by readings pertinent articles and do not dollars five hundred one thousand present a pattern.1 common Faced with ($1,500.00) money United consistency that lack of scrivener *4 Bobby L. of America to Curtis. States apparently indictment before us for opted Statutes, Texas Penal Annotated Branch’s draftsman is the handiwork of the Whether Thus, 3d Ed.2 Vol. 1 page in at the dividing is the Court defective the issue so suggestion for murder is: opinions produced. that are three “- attempt did then and there to positions respective As I understand the _ _ by Brothers, over the nature my they differ (shooting gun,) him the having with at and, quality certainly, the order of the and time specific the intent to commit the preparation.3 Neither act that is more than offense of murder.” allegation regard as that addresses I 17, in page and Vol. 2 at presented form by the maker indictment to intended capital for hiring murder is: beyond preparation. the act there_ “-did then and . sufficiently alleges a That the indictment cause the of_employing death for appellant specific part intent on the remuneration and of remunera- victim cause the death of his intended tion, (the to-wit: sum of _ and $500 using supported by word “attempt” is paid), (name to be majority what then a tenuous view of _ _ killer) (de- Moreover, to kill said essential ele- the Court.4 all guidance extemporaneously, 1. One who resorts to form books for the accused in which drawing in charging intentionally personally an indictment en- and attempt kill, to hire for in for gaged designed murder is some but in failed. boggling experience. compare a mind course, See and in Of neither situation is there 34, 7 Texas Practice and then, Morrison & Black- killing. problem, an actual The is at what well, (8th Ed.1977) Criminal Forms Annotated point objective did an effort that in its failed 4.06; §§ 2.01 and 1 Texas Annotated Penal attempt. peace an In the amount officer Statutes, (1974) Branch’s 3d Ed. 15.01 § easy immediately solution is cases the because Statutes, and 2 Texas Annotated contemporaneously every exists fac- (1974) 19.03; McClung, Branch’s 3d Ed. § necessary except tor murder — Jury Charges (Rev. for Texas Criminal Practice cases, though, problem hiring death. Ed.1979) Compare 286 and 293-294. Tex- also requisite decide solver must when all ele- Jury Charges (1975) as Pattern Criminal excluding into an at- death —coalesce ments — tempt 19.03(a)(3); CPJC 15.01 and CPJC Texas cause an death. Given addition at Blackwell, Practice 246 and Morrison & party quite other least one essential differ- (8th Ed.1977) Criminal Forms Annotated situation, policy ent in latter considerations §§ 91.01 and 93.06. necessarily solutions to the former do not con- trol. Influenced, perhaps, by acknowledgement preface prepared in its that the work was with (Tex. Dovalina v. S.W.2d 378 4.See County the assistance of the Texas District and Cr.App.1978) and 565 S.W.2d Telfair v. Attorneys Association. (Tex.Cr.App.1978). alignment If the 1978 today, my cases of convert what of a still holds vote will murder peace really majority helpful minority expression officer are not all here. to a was then Usually situation, holding each is a on ‘.‘one one” aris- now. object capital ments of the generated murder offense cused put operation. in That question, then, are there. The me, why, reduced it seems to particular in this whether to commit mur- situation the most critical element of an by hiring der agree- occur before the intent to cause death ment to kill is struck reaching hiring, or is in quality and the nature and agreement or agreement must await “tending” act are relatively signifi- “tending” then be a act of the hired cant. killer. pleader in obviously this case It must be remembered that criminal at advanced theory that attempt lay in the tempt is an prac inchoate offense.5 As the $1,500 accused’s offering money commentary following tice to the putative killer, particulariz- without observes, 15.01 since inchoate of § point at money or, what was offered “presuppose fenses an intent to commit an indeed, the manner in which the offer of actor, other by hypothesis, offense and the money was made. offense, ignores object the sanction for the particular
This object unique they provide offense is significant no deterrence . it contemplates (but do) they perform consummation of . le the transaction death of the gitimate penological permitting intended functions in victim is paid by done someone punishment the ac- of those who demonstrate cused to do it. An disposition criminality accused who desires the toward before ” but, death of declining any do do real we harm . Further personally, deed party assured, hires a third are independently and have con *5 need any firmed, not take beyond engaging action 15.01 defines the offense of § the services of the killer. If the killer exe- attempt criminal “in traditional terms.” cutes the parties may Mandujano, contract both to it generally be v. See United States guilty of 370, 1974) murder. But (5 if the killer 499 F.2d in which 372-379 Cir. contract, Rives, fails to execute culpa- the does the C. J. collects a host of authorities and bility procuring depend accused on holdings distills their down to two basic 6 the reason for the failure? I think ingredients attempt; not. 22 of C.J.S. accused, initiated, parlance p. and, in Attempts; Criminal Law § contract,” “let Texas, has for penal liability early of the terms in for statements execution of that contract Wood Tex.App. another at- 11 S.W. State, 30 (Ct.App.1889)7 and Watts v. taches to the accused killing because the is (1891).8 Tex.App. the consequence natural S.W. of what the ac- crime, “imperfect; partial; provid- 5. Inchoate means unfin- tute ... a common-law ished; begun, completed but not ed is too trivial small for the that act not Dictionary, sufficient, notice; Black’s Law Revised Edi- Fourth law’s the is intent tion, 904. adequacy the object further of the act is the inquiry. of is an Therefore an “First, acting the defendant must have been law, particular thing which the intent do a culpability required with the kind of otherwise statutory, declared to be a common or crime, for the commission of the crime which he is doing coupled act towards the with an * * * charged attempting. Second, with the magnitude proximity in to the sufficient engaged defendant must have in conduct which cognizance fact intended to be taken step constitutes a substantial toward commis- law, itself the that does not concern with step sion of the crime. A substantial must be small; or, things briefly, an trivial and more strongly conduct corroborative of the firmness particular crimi- is an intent to do Note, of the defendant’s criminal intent.” how- thing, falling nal it short of with act towards ever, requires only that our State an act that thing intended.” object "tends” to effect commission of the of- fense, not that it be substantial. Crim.Law.Mag. 8.Quoting approvingly from 9 162: Quoting approvingly Bishop from 1 Criminal long §§ Law remains in mere inten- 728: “So as the crime tion, but, punishable; if an it is not particular “If a man undertakes to do a wrong sort, falls made to execute the intention which of the indictable and does some consummation, it, com- complete short of its a crime is act towards meant, but fails to what he coalesce; together his mitted. Here an act and intent evil intent and act consti- events, category Because evil in and the in essential this manner which the offer remuneration, are, view, evidentiary murder is my either was made in mat- promised, specified or an may guilty accused be ters that need not be in an indict- if, criminal solicitation with intent ment. someone be killed for remunera- I For these reasons conclude that tion, requests, that accused commands or in indictment is not and concur defective attempts person to induce other kill overruling grounds contending error oth- deed; pay with a for the erwise. complete offense any agreement without person the other kill. For the same DALLY, Judge, dissenting. reason, guilty an may accused be of crimi- agree I cannot the indictment if, basis, nal conspiracy on the same sufficient; to al- since the indictment fails agreement is party— reached and lege an act which was done to effect or, context, in another per- accused — not it does intended offense of just forms one innocent otherwise overt the offense of pursuance of the agreement.9 Neither murder. offense demands that the second en- party provides Penal defines and Code gage single in a act of criminal misconduct crime of criminal penalty separate initiating order that the solicitor con- attempt as follows: spirator charged be with committing 15.01, Crimi- “V.T.C.A. and, inchoate offense if guilty, found Attempt nal punished as a it, first degree felon. How is if, “(a) person commits offense then, that the attempted capital offense of offense, specific intent commit an with murder by hiring requires an agreement than amounting to more he does kill followed criminal misconduct that fails to tends but preparation that objective fails its the originator before in- of the offense effect commission scheme be charged with that incho- tended. and, ate offense if guilty, pun- found *6 prosecution for “(b) It is no defense to ished degree as first felon? The fundamen- at- that the offense tal vice in each offense is precisely actually tempted was committed. specific same: the in intent the mind accused that “(c) An section is be killed a hired offense under this gun. Only the category manner lower than the offense at- which that intent one manifests itself tempted, somewhat and if the offense different: attempt, a felony degree, a conspiracy. solicitation or a third is, Money to paraphrase, each root of is a Class misdemeanor.” just manifestation the mechanics of evil— murder attempted capital The offense of moving actually it about vary. light In this committed, which requires that an act offering undertaking hard cash for to preparation, to more mere amounts than seems more than definitive an unsecured offense of murder. effect intended promise pay to it in future. Therefore, attempt- allege to the offense of Accordingly, allege I necessary would hold that the indict- ed to capital murder it case, ment having specific in this intent to though awkwardly word- that a a defendant ed, by “offering” its did capital clause does murder commit offense of amounting act, to prepara- more than mere some which amounts to more than tion tends that to hir- the commission preparation, effect commission of to effect ing When, to murder. in relation to other intended offense of murder. action, passed regardless impor- although conspiracy intent into that a of its further action was futile.” an at- to scheme whereas tance the overall dangerous- tempt involves a “manifestation Jackson, F.Supp.
9. See United States v.
ness.”
(E.D.N.Y.1976):
An overt act
issue,
indictment in the instant case
in
now
an indictment was held suffi-
appellant:
that the
alleged
cient which
the defendant:
May
“.
.
.
did
“.
. On or about
unlawfully,
then and there
Faye
unlawfully, knowingly
cause the death
Doty,
of Linda
intentionally attempt
cause the
employing
said defendant was
Jerry
death of
Powell
cutting and
remuneration and
of remu-
stabbing
him with a knife and
shoot-
Bobby
neration
knowingly
L. Curtis
ing
gun,
Jerry
him with a
the said
Powell
intentionally offering
one thousand
being peace
acting
a
officer
in the lawful
($1,500.00)
five hundred dollars
discharge of
duties and the
his official
money of the
of America
United States
said Defendant
then and there knew the
Bobby
L.
paid
Curtis
Jerry
peace
said
Powell was
officer
Faye Doty by
shoot-
Linda
acting
discharge
in the
of his official
ing her
shotgun
with a sawed off
duty.”
allegation
concern-
in the indictment
State,
(Tex.Cr.
In Pitts v.
569 S.W.2d
Lin-
employment
to shoot
of Curtis
App.1978), an
the offense of
indictment for
Faye Doty
allegation necessary
da
is an
held
capital murder was
suffi-
raise the offense from murder to
alleged
cient when it
the defendant:
murder;
Code,
19.-
Y.T.C.A. Penal
Sec.
unlawfully
“.
. did then and there
03(a)(3);1 it
allegation
is not an
of an act
intentionally
done to effect the intended offense of mur-
Serres, by shoot-
L.S.
15.01(a).
der. Y.T.C.A. Penal
Sec.
gun,
him with
the said S. L. Serres
acting in the lawful
being peace
officer
State,
(Tex.
In Colman v.
discharge
duty
of an
and the said
official
Cr.App.1976) an indictment for the offense
and there knew
Larry Charles Pitts then
attempted capital
murder was held suffi-
Complainant
peace
was a
offi-
said
alleged
cient.
It
the defendant:
cer.”
there,
“.
then and
spe-
with the
the constituent element of
While
cific intent to commit the
capi-
offense of
em-
alleged
murder
in the instant case was
tal
attempt to cause the death of
remuneration,
of another for
V.T.
ployment
Graves,
Terry L.
hereinafter called com-
19.03(a)(3),
C.A. Penal
the con-
plainant, by shooting the said Terry L.
alleged
murder
stituent element of
pistol
Graves with a
and the said com-
State,
v.
supra,
Dovalina
Colman
plainant
peace
was a
officer then and
supra, supra, and Pitts v.
acting
discharge
in the lawful
of an
was a
that the defendant knew the victim
duty
official
attempting
to-wit:
to arrest
peace
discharge of his lawful
*7
officer in the
said defendant and the said defendant
Code,
19.-
duties.
Penal
Sec.
V.T.C.A.
then and there
complain-
knew the said
State, supra, and
03(a)(1).
In Colman v.
ant
peace
to be a
officer.”
State,
it is
supra,
v.
the act which
Pitts
In Dovalina v.
The majority analysis of V.T.C.A. Penal 19.03(a)(3) “very simple.” is too
The employer in a murder hire is not *8 Conspiracy. “Criminal Solicitation. “Criminal “(a) person if, “(a) conspiracy A person commits an offense commits ’with capital felony felony if, intent felony that a or committed: the first with intent degree committed, requests, commends, “(1) agrees persons he he with one or more attempts or engage engage to induce or one more of in con- or them that, specific offense; conduct under the duct circumstances that would constitute the surrounding “(2) performs his conduct as the actor he be- he or one more of them be, felony agreement.” lieves pursuance them to would constitute the overt act in party or make the other a to its commission.”