*1 Graham lant’s residence to determined have blood appeal a con- from appellant stains consistent with de- murder, capital viction for held that type we blood ceased’s is a circumstance which there was sufficient evidence corrob- to may be considered. The corroboration was accomplice orate the witness defend- where supports sufficient. The the evidence con- placed ant was at the scene of crime the viction. close to the time the offense occurred rejected employ Even when we the now another saw a behind witness man from Fortenberry of find the cor- standard leaving
who "the looked like accused the sufficient evidence am- roboration building shortly the where crime occurred support ple to the convictions. happened.” after it is affirmed. support to order a conviction upon accomplice based testimo witness’ CLINTON, J., concurs in the result. ny, evidence, corroborating must testimony accomplice other than the
witness defend which tends connect the 38.14, supra,
ant with the offense. Art.
Hardesty v. Graham v. Brown
App.1983), supra, (Tex.Cr.App.1983). necessary
It is not that the evidence corroborating accomplice the testi witness Ex Delmas Scott CAMPBELL. mony link the directly accused to crime the guilt. or be No. sufficient itself to 69620. establish if the sufficient combined cumulative Texas, Appeals of Criminal of Court weight incriminating evidence fur En Banc. nished non-accomplice the witnesses tends to connect accused with com Sept. 17, 1986. mission of the offense. Granger v. given by
The statement appellant testimony
corroborates the Leyva places appellant with the codefend- before, during
ants and after sexual upon
assaults and murder of the deceased.
The statement recites details as the
place appeared, where the deceased first crime, hitting
the scene of
stabbing deceased, the location place body where the of the deceased dragged, departure scene disposal knife and other items.
The statement further the tes corroborates
timony Leyva appellant admits Leyva dragged
therein that he and
deceased into the bushes. state appellant’s
We find evidence contained which tended
connect addi with the crime. In
tion, appel- recovered from underwear *2 Applicant
was not
of facts.
the trier
com
plains
finding
his eligibili
that such
affects
42.12,
ty
parole.
15(b),
for
See Article
V.A.C.C.P.,in effect at the time of the 1979
conviction,
1980
applicant’s
and
see Ex
Alegria,
S.W.2d
court,
convicting
The
where the habeas
originally filed under
was
Arti-
11.07, supra,
pro
cle
a nunc
entered
judgment substituting
“jury”
the word
finding
the word
in the affirmative
“court”
weapon.
of the use
deadly
of a
Thereafter
convicting
court recommended that re-
lief be denied and ordered the habeas cor-
pus
record forwarded to
Court.
part
The
that
on or
Campbell,
Delmas Scott
about October
Wade,
Henry
Atty.
Dist.
Ruth E.
unlawfully,
“did then and there
inten-
Dallas,
Plagenhoef,
Atty.,
Asst. Dist.
Rob-
tionally
knowingly cause the
death
Huttash,
Austin,
Atty.,
ert
State’s
Campbell,
Marilyn Archer
individu-
State.
Marilyn
al
shooting the said
Archer
Campbell,
(Em-
handgun_”
with a
phasis supplied.)
ap-
indictment in
charge
tracked the
OPINION
plying
facts. The
re-
law to the
ONION, Presiding Judge.
guilt stage
turned a
at the
verdict
post-conviction
corpus
This is a
habeas
reading:
trial
proceeding brought under the
provisions
“We,
jury,
find the defendant
11.07,
Article
guilty murder,
charged
in the in-
Applicant
convicted
of murder
dictment.
Cause No. F79-11080-R
Dis-
the 265th
Huls,
Bert
“/s/
trict Court on June
1980. The
Foreman”
pun-
which convicted him also assessed his
(Emphasis supplied.)
imprisonment.
ishment at life
stage
penalty
Thereafter at the
Applicant,
application,
in the
con-
habeas
punish-
applicant’s
trial the
assessed
improperly
tends the trial court
added
imprisonment.
ment at life
finding
judgment
read-
judgment
The court in its
entered
ing:
finding as to the use
contested affirmative
“The Court finds that defendant herein
deadly weapon.
of a
dur-
used or exhibited
commission of
offense.”
said
V.A.C.C.P.,
42.12, 3f(a)(2),
pro-
pertinent part:
vides in
Applicant argues that the court
un
“
finding
Upon affirmative
that the
finding
authorized to make such
as the
deadly
allege
or exhibited
deadly
indictment failed to
defendant used
offense,
weapon during the commission
an of-
was used in the commission of the
shall enter the
fense
the trial court
charge
did not submit a
issue to
...
judgment of
court.
use
jury concerning
of a
Upon
no
an affirmative
weapon, the verdict form utilized made
the defendant used
deadly weapon that
the court
reference to a
or exhibited was a
in the indictment.” See Ruben v.
shall enter
judgment.”
in its
794 (Tex.Cr.App.1983).
S.W.2d
V.A.C.C.P.,
in ef-
(Tex.Cr.App.1985),it was written:
fect at the
provided
pertinent part:
“
pause
“We
to note
some in-
...
contains an
[I]f
*3
finding
stances an affirmative
will arise
finding
affirmative
3f(a)(2)
under Section
as a matter of law.
If the trier of fact
prisoner]
this Article
eligi-
is not
[the
pistol
finds that a
been used
ble for release on parole until his actual
commission of the offense under the cir-
served,
calendar time
without considera-
above,
cumstances described
then it has
good
tion of
equals
conduct
one-
deadly weapon
has been
third of the maximum sentence or 20
pistol
used since a
is deadly weapon per
years,
calendar
which is less....”1
State,
se. Williams v.
“In this This word * * * guns, fowling-pieces, blunderbuss- sorts of “(1.) , es, pistols, etc....” “(3) any de- ‘Firearm’ means device made, expel pro- or signed, adapted to “hand- In definition of addition through using the en- jectile by barrel 46.01(5), supra, upon which we gun” § ergy generated by explosion or burn- guidance, “hand- may rely for find that readily con- any or substance device “any firearm that gun” has been defined as does vertible to use. Firearm hand; one can be held fired with antique include curio firearms that or House pistol.” or a revolver Random to 1899 and prior were manufactured Language; Dictionary English Una- have, integral part, may as an (1967). Di- bridged Edition The Reader’s folding knife characteris- blade or other (1966) Dictionary gest Encyclopedic Great by chap- weapons illegal this tics of pistol.” says “handgun” means “a simply ter. Dic- Third International
Webster’s New Unabridged (1961), a “hand- tionary, states “(5) ‘Handgun’ any firearm means firearm fired with one gun” is “a held and made, designed, adapted to be that is hand.” fired with one hand.” by firearm is said that a been clear that “firearm” and It is the terms “deadly purposes weapon” definition “handgun” the offenses are limited to V.T.C.A., of the Penal Code. Code, Chapter 46 Penal but State, v. Stewart Code, 1.07(a)(ll); Penal definitions used to assist in may (Tex.Cr.App.1986). 349 in the con- understanding “deadly weapon” 532 S.W.2d usage." 311.011(a) provides: and common mar 2. Said phrases “Words and shall be read context gram- according rules of and construed
527 Dade, opinion quotes settled pistol also well ter on the itself. State, that, v. 617 Giles What and the overlook is Polk (Tex.Cr.App.1971); S.W.2d 690 statutory prescription Williams with consonant State, 507 (Tex.Cr.App.1978); implement that an to facilitate introduced State, Jackson v. S.W.2d 685 escape be a State, App.1977); Garcia v. S.W.2d in Dade twice State, (Tex.Cr.App.1976); Fentis v. 528 “handgun” possessed “deadly be a (Tex.Cr.App.1975); Thompson S.W.2d 590 Thus, weapon.” properly Dade more be- 621 (Tex.Cr.App.1974); longs category first classified (Tex.Cr.App. Valle v. Polk, supra, at 396. 1969); (Tex. Perez v. Every case cited Court in Dade Cr.App.1981). And prosecution within a proposition handgun that “a ... Chapter Penal Code has been construed to constitute pistol Court made clear that a is necessar- weapon per se” pistol.1 involved a es- ily handgun “pistol” and the in- term then, sence, already equated the Court has meaning cludes the sense However, “handgun” “pistol.” with one “handgun.” term Sims v. reasonably suppose that neither a “pistol” deadly weap- nor a ais (Tex. contemplated by on it is a “firearm” unless Cr.App.1981),it was stated: Code, 1.07(a)(ll). V.T.C.A. Walk- “Finally, unequivocally the indictment *5 er v. implement escape states that the for was App.1976). Many “pistol,” a socalled handgun intended to abe which has been “handgun” “gun” really is not a fire- deadly weapon construed to constitute a arm, any parent “cowboy” of a minor per se.” Yet, judges “cop” will attest. even contin-
In the case ex- instant the indictment thing ue those the in though to use terms pressly charged the murder See, with question obviously is not a firearm. by shooting handgun.” the victim a (Tex. “with e.g., Mosley jury The the found “as .App.1976). Cr charged in the indictment.” itWhile Legislature any Since the firearm a practice be better to submit issue a deadly weapon per everyone fairly se and jury’s to the jury, we conclude that the firearm, well what is a the understands guilt stage allegations verdict at the of the point that is not de- is when the offense indictment, in the murder fact that the Chapter 46, charging in a instru- nounced handgun deadly weapon is se is a allege deadly weapon that the should deadly sufficient affirmative that a firearm, eschewing is a loose terms as in the of the was used commission “handgun” “pistol,” “gun,” none of offense. defined which is outside of V.T.C.A. prayed The relief for is denied. Code, 46.01. And I hold that un- would alleged it of the less is an element CLINTON, Judge, joining judgment the or, element, if not it is of the Court. indictment, to be one somewhere on the excerpt to find a its first trier of fact not authorized purposes 394 (Tex.Cr.App.1985), thing the is a 42.18, opinion 3g(a)(2) “of a of the Court underscores Polk, supra, at handgun” in to reference J., (Clinton, concurring).2 and la- illustrative, emphasis throughout other- case is failure of 1. All is mine unless 2. The instant allege that the to somewhere wise indicated. towit, firearm, "handgun" ensuing created much turmoil —needless- Court,” “im- majority Joining Judgment finds the order below that proper” gesture futility,” but asks whether there is “an af- “to dissent is a I never- finding by jury aggres- as to the use firmative theless must dissent to what the turns deadly weapon,” opinion of a and then to majority sive and assertive does telling case, no much research and many devote how namely, destroys valu- answer, writing produce defendant, to its viz: rights of able constitutional particular, right right to notice and the jury’s conclude that the verdict at “[W]e to decide issues of fact. allegations have guilt stage in the indictment, and the fact that a murder Although given was not deadly weapon per se is a handgun is a any charging in the that notice instrument finding that a sufficient affirmative deadly weapon he used a when he assault- deadly weapon was used commis- witness, complaining ed the and was never the offense.” sion of put on notice that the make a good deal like that The conclusion smacks a deadly weapon was used spoiled and thus which Polk found to be offense, aggres- the commission of the sought to out. If a throw majority blithely sive and assertive weapon per se unless it is a not a notwithstanding these omissions holds nagging impression is still a jury actually made an find- affirmative appellant because used or charged in the indictment” the guilty “as offense, exhibited in the commission of the fire- majority inferred used a nobody, including jurors, realized albeit he did cause death arm from the facts that place. taken that had shooting something called deceased with judge’s entering The trial Polk, “handgun.” Compare at 398. constitutionally in its deplore I the continued refusal of While majority I impermissible. dissent majority statutory provi- deal with holding. opinion’s contrary addition sions, par- manifestly perplexing are which stated, I I continue to previously have what courts, by what I conceive is a ties and I concur to what stated subscribe *6 expedient requirement a simple not—if I ring dissenting opinion that filed and process due course of law—of due and fire- having charging instrument state a I see a like App.1985), also proving and arm is a filed Gomez used ac- “gun,” “pistol” continue to will firearm, gesture cused to dissent is a left long I a breath of air do so as as have futility. appellate my body when an because join judgment of the Accordingly, I guaranteed in our tramples rights on court here, constitutions, Court. as occurs respective duty bound to on that court someone TEAGUE, Judge, dissenting. otherwise, nothing represent protest; judi than what the members less Although Judge absolute- Clinton Republic became when “Opinion ciary in Weimar in his ly correct when he states working, system the trial process due With the ly. due If not a matter of law, authority practical in en- matter not acted without course of then as have judge, parties immaterially allegation to alert tering should serve did and handgun. allega- order; ap- Such to heed entering purported nunc surely evidence raises tion tenders the issue and over plicant cause for concern would have no it, allowing properly charged jury thereby parole eligibility and therefore would his finding" an "affirmative make corpus, application for habeas have filed this is, used spend generating have to thereby all who Polk, supra. supra. required proceeding. expense on this effort and findings, having the trial made its judgment of the trial judge enters them in the system court. The works. they judicial surrendered their offices to OPINION High the Nazi Command. ONION, Presiding Judge.
This
post-conviction
corpus
habeas
proceeding.
11.07, V.A.C.C.P.;
See
parte
(Tex.Cr.
Ex
Young,
Applicant upon felony was convicted delivery information of the of more than parte Ex Kevin Peter WARD. pounds pounds five and less than 50 marihuana on punish- March 1982. His No. 69630. years, probated. was assessed at 10 Court of Appeals Texas, Criminal Subsequently 22, 1985, February on appli- En Banc. probation revoked, cant’s pun- and his ishment was reduced to years’ impris- five Sept. 17, 1986. imposed. onment. Sentence was ap- No
peal was taken. his contends his
conviction upon was based guilty plea which was not knowingly voluntarily entered because he was led to believe and did range believe that punishment for the offense was from five to 99 years, when in fact the statute under which he was was unconstitutional. See (Tex.Cr. Crisp, Ex App.1982). hearing held,
No evidentiary habeas record was forwarded to this Court. This Court ordered an evidentiary hearing permitted so that would be allegations. court, develop his The trial upon applicant’s the affidavit of counsel at guilty plea, the time of the and record of guilty plea, findings. made certain *7 guilty plea found that at the time of the first-degree felony was a the Controlled Substances Act (§ 4476-15, V.A.C.S.), 4.05 of Article Leg., amended H.B. Acts 67th p. applicant ch. was admon- range punishment ished as to the for a first-degree felony at the time of the plea; that there was no discussion between Ward, pro Kevin Peter attorney the court and and his possible unconstitutionality Holmes, Jr., Key, John B. and Karrie being statute under which Houston, Huttash, Atty., Asst. Dist. Robert prosecuted; dis- had not Austin, Atty., State’s for the State. possibility cussed with his counsel the statute; unconstitutionality