Barry Patrick EMMETT, Appellant, v. The STATE of Texas, Appellee.
No. 05-81-01316-CR
Court of Appeals of Texas, Dallas.
June 15, 1983.
654 S.W.2d 48
However, any conditions imposed by the Legislature may not violate the Constitution. In El Paso Natural Gas this Court did not address the constitutionality of the resolution in light of
The date of the trial court judgment is March 22, 1982. We here render judgment that Allstate shall have and recover interest on its judgment from that date until paid at the annual rate of nine percent. The trial court judgment is therefore reformed to award such interest, and as reformed, the judgment is affirmed.
Michael Gibson, Dallas, for appellant.
Henry Wade, Dist. Atty., W.J. Westmoreland, Asst. Dist. Atty., for appellee.
Before STEPHENS, SPARLING and VANCE, JJ.
STEPHENS, Justice.
Barry Patrick Emmett was convicted of murder and sentenced to life imprisonment in the Texas Department of Corrections. On appeal, hе asserts eight grounds of error. The sufficiency of the evidence is not challenged. We find the first ground of error dispositive. The cause is reversed and remanded for a new trial.
Emmett cоntends, in his first ground of error, that the trial court committed reversible error by refusing to submit to the jury the issue of whether or not the witness John Coale was an “accomplice witness.” We agreе. A review of the record reveals that, on the night of the murder, Emmett and Coale were present at the residence of the deceased, where they played poker and purchased cocaine from the deceased. Emmett was angry with the deceased over the quality and quantity of the cocaine, and he and Coale left at about 4:30 а.m. At that time, Emmett told Coale of his intent to murder the deceased. Coale testified that Emmett asked him to help dispose of the body, but that he refused. Coale said he did agree, howеver, to return with Wally Wilson to remove his personal belongings
Coale went to the police a few days later in order to set up an alibi for both Emmett and himself. On several occasions, he lied to the police concerning his involvement in the murder. However, he was later arrested and charged with murder and arson. John Coаle was thereafter granted immunity from prosecution in exchange for his testimony at Emmett‘s trial.
An “accomplice,” as used in former
A person may be prosecuted as a party to an offense committed by the con-
A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense.
Although Coale testified that he did not previously agree to assist Emmett, the trier of fact was entitled to disbelieve him. It has been held that a witness’ statement that he was without knowledge or that he was forced or coerced does not compel the conclusion that he is not an accomplice witness. See Easter, 536 S.W.2d at 226; Cozine v. State, 87 Tex.Cr.R. 92, 220 S.W. 102 (1920); Cf. Freeman v. State, 11 Tex.App. 92 (1881) (if a prosecution witness implicates himself, his statement that his participation was compulsory raises a fact issue as tо whether he is an accomplice witness); also Cf. Alexander v. State, 607 S.W.2d 551 (Tex.Cr.App.1980) (trial judge not required to believe defendant‘s testimony where circumstances sufficient to convict as party to burglary). In determining whether one can be convicted as a party to an offense, this court may look to events after the commission of the offense, and reliance may be placed on actions which show an understanding and common design to do a certain act. Alexander v. State, 607 S.W.2d 551 (Tex.Cr.App.1980). It is our opinion that Coale‘s behavior after the murder is sufficient evidence to raise the issue оf whether he had previously agreed to such behavior, which would render him liable as a party to the offense; thus it is sufficient to raise the question of whether John Coale was an aсcomplice witness. Therefore, it was error for the court to refuse to submit that issue to the jury.
Reversed and remanded.
SPARLING, Justice, dissenting.
The witness, Coale, would not be subject to prosecution for the crime of murder. Therеfore, I dissent from the majority opinion.
The unquestioned facts as reflected by the record are that Coale knew of the appellant‘s intention to kill the deceased, but thаt prior to the murder he specifically refused appellant‘s request to help dispose of the body, and did nothing to aid or encourage the murder. Coale arrived at the sсene shortly after the murder and observed the body. He helped ransack the decedent‘s home, and he burned the deceased‘s corpse. Enough gruesome facts exist to insрire revulsion toward the witness. Yet, the witness’ participation occurred after the deceased was dead. If an accessory after the fact1 is not answerable for the primary
The majority, in one breath concedes that an accessory after the fact “can no longer be an accomplice witness.” Yet in аnother they hold that even though the undisputed evidence shows Coale to be only an accessory after the fact, it raised a jury issue as to whether Coale is an accоmplice. Thus, the majority states that one can become an accomplice by the jury disbelieving the uncontroverted evidence that he is only an accessory aftеr the fact.
I would, instead, hold that there must be some evidence of Coale‘s participation in the murder to raise a fact issue for the jury‘s determination. See Singletary v. State, 509 S.W.2d 572, 575 (Tex.Cr.App. 1974); Johnson v. State, 502 S.W.2d 761, 763 (Tex.Cr.App.1973), O‘Dell v. State, 467 S.W.2d 444, 447 (Tex.Cr.App.1971), see generаlly 24 Tex.Jur.2d, Evidence § 691 (Supp. 1982). I would therefore conclude that the court did not err in failing to submit a charge to the jury regarding Coale‘s status as an accomplice.