*1 ferred without written record what magistrate to do or not to do
particular parties may not ease. The know kept in appellate courts will be appeal.
dark on
I for the reasons concur reversal my opinion original submis-
stated
sion, reasoning dissent to the but rehearing.
majority on TEAGUE, JJ., join
TOM G. DAVIS opinion. HOLLADAY, Appellant, Lee
Robert Texas, Appellee.
The STATE of
No. 058-85. Texas, Appeals Criminal
En Banc.
7,May
195 State, v. (Tex.Cr.App.1984), State, Fortenberry and v. authority, (Tex.Cr.App.1979), as sustained error, ground the sole appellant’s erroneously Ap “The trial court overruled pellant’s objection to the Court’s pointed guilt phase the of the trial which inadequately out that the Court instructed Rogers, (court appointed Donald W. Jr. regard the on the law with to accom appeal only), Houston, appellant. for cases,” plice testimony in capital murder judgment and reversed the trial court’s and Holmes, Jr., B. Atty. Rory John Dist. and State, Holladay sentence. See 682 Flynn, C. Gordon Dees E. and Winston 1985). (Tex.App. 434 S.W.2d Cochran, Jr., Houston, [1st] Attys., Asst. Dist. - Houston Huttash, Atty., Austin, Robert State’s This Court held in County both and For the State. tenberry, supra, if a conviction for the may
offense of be based witness, upon testimony an and requests the defendant instruction OPINION ON FOR STATE’S PETITION that the witness’ corrob DISCRETIONARY REVIEW as to the orated elements that murder, make the crime murder TEAGUE, Judge. judge give the trial the in Holladay, Lee Robert re- hereinafter instance, struction. the record appellant, ferred to charged by clearly appellant’s reflects that trial indictment and convicted timely properly objected and counsel committing the offense of murder while refusal include the above judge’s of committing course the offense jury. instruction robbery, which granted petition We the State’s for dis- V.T.C.A., Code, murder. See Penal Section cretionary in order to make review 19.03(a)(2). County determination whether and nega- Because the answered Fortenberry, supra, line of cases is still question tive prob- whether there was not, express- viable. We find that it is will ability appellant would commit ly overrule those cases the extent of criminal acts of violence that would consti- opinion, conflict with this and will reverse continuing tute a to society, threat the trial judgment appeals of the court of appellant’s punishment assessed the judgment affirm the of the trial court. imprisonment. 37.071(b)(2), at life See Art. legal “accomplice” terms V.A.C.C.P. “accomplice specifically witness” are not appeal, appellant On direct did not Code, present defined in the Penal challenge sufficiency of the evidence. abolished all traditional distinctions be It therefore our purposes sufficient for accomplices principals. tween See V.T. only that the state facts this cause C.A., Code, 7.01(c). Today, Penal Section untimely reflect that Paul Joehlin met his “accomplice” parti- all term includes neighbors, appellant, death when criminis, persons are cipes but those now Glock, Keane, Beverly Michael and Michael simply “parties” to the offense. called Kaiser, him, robbing while in the course of changes light Legislature chest, many him times stabbed part made when it enact law lungs with a knife and a throat two- Code, present ed Penal the term “ac pronged meat fork. given a broad complice witness” should be State, meaning. Appeals, First re- Easter v. 536 S.W.2d
The Houston County n. 4 Also see lying this Court’s decisions of Wil 196 396, 399, Thus,
liams v. Legislature 53 Tex.Cr.R. crime. has made Singletary S.W. the above beliefs law. (Tex.Cr.App.App. S.W.2d Kaiser testified for in this State 1974); (Tex. Wade charged cause. Because Kaiser had been Cr.App.1963); Orr v. *3 committing same with offense as 252, Wil (Tex.Cr.App.1933); admitting appellant, being as well as one of State, liams v. 396, 53 Tex.Cr.R. 110 S.W. parties responsible for primarily Joeh- (1908); MeQuarrie, 63 “CRIMINAL PRO lin’s com during death that occurred Evidence—Accomplice Testimo CEDURE — robbery, mission he an was ny Testimony Accessory After the Fact — Harris v. witness a matter of law. See Corroborated,” Need Be Note: Not Case 8 State, 381 (1976/1977). Mary’s St. Law Journal State, Kerns v. (Tex.Cr.App. 550 91 S.W.2d instance, objection, without State, v. 1977); Hendricks 508 633 legal judge defined the term “accom- (Tex.Cr.App.1974). Also see the cases col plice” accomplice, as follows: “An as that under West key lated criminal law number used, any person term is here means con- 507(1). charged.” nected crime We find with question just that must is we decide comports that this definition with usual an in a how detailed instruction ordinary meaning given and that that is upon State relies where the term, knowingly, is “one who volun- which of an
tarily
common
unites with
and with
intent
accused,
against
its case
must
establish
principal
in the commission of
offender
given
satisfy
be
order
Dictionary
Law
Black’s
the crime.”
16
38.14, supra,
pro-
provisions
Art.
which
(1979 edition).
very
By the
definition of
vides:
“accomplice”,
person
such
who
word
upon
had
the tes-
A
cannot be
conviction
prosecution
for the
is
testifies
infamous
an
unless corrobo-
timony of
untrust-
and his
is considered so
tending to con-
rated
other evidence
worthy a conviction should not be based
com-
nect
the offense
the defendant with
solely
testimony.
such
upon that
Because
is
mitted;
not suffi-
and corroboration
corrupt,
usually
a witness is
deemed to be
cient if it
shows
commission
always
is
with
looked
of the offense.
v.
suspicion.
Eckert
623 S.W.2d
(Tex.Cr.App.1981); Hoyle
v.
4
359
in Tex-
argues
“Nowhere
The State
that
on Evi-
(1878);
Tex.App. 1965)
(Vernon
38.14
Greenleaf
as Code Crim.Pro. art.
(16th
1899);
dence
on
edition
or
Greenleaf
required
particular
that a
element
(1858 edition); Phillips’
Evidence
Treatise
be corroborated before
group of elements
Wigmore
(1849 edition);
on
Evidence
VII
may be convicted
[of
Evidence, Section 2056
(1978 edition).
accomplice testimo-
on the basis of
murder]
Art.
ny. All
38.14]
that
provi-
[under
Legislature,
enacting
Our
tends
other evidence which
is that there be
38.14, V.A.C.C.P.,
em-
which
sions
with the offense.1
to connect the defendant
1856,
body
precursors
statute’s
extreme,
analysis
the Court’s
Taken
1911,
1925,
1879, 1895,
requires
in which there
to an offense
apply
would
rest
an ac-
may
conviction
before a
legis-
There is no
aggravating element.
an
complice
As
approach.”
justification
lative
for
by independent evi-
corroborated
noted,
is no definition
previously
there
to connect
accused
dence
States,
See,
(Tex.Cr.
e.g.,
v. United
law.
Caminetti
Thompson
S.W.2d 627
192,
(1917);
‘accomplice
Procedure. We was also instructed on the of- arguments. the State’s fenses robbery attempted robbery prior The record reflects that to the time given the definition of the “bodily term judge the trial read the injury.” They were told that the offense jury, juror given each copy robbery individual, if occurs charge so that he only could not hear the committing theft, course of judge read the but could also visual- or with intent to obtain maintain con- ly reading, see what the property, intentionally, trol of the knowing- procedure find highly we is to be commend- ly, recklessly bodily injury causes ed to the judiciary. members of our trial V.T.C.A., 29.02(a)(1). another. Penal Code *4 “Bodily injury” physi- was defined to mean judge The jury trial instructed the that pain, impairment cal illness physical or of Kaiser was an if an offense was V.T.C.A., Code, condition. Penal Section committed. 1.07(7). jury The was told that the offense jury She then instructed the that “[it attempted robbery per- of occurs when a could convict the Defendant not] [Kai- son, acting with the intent to com- testimony unless first ser’s] [it] believe[d] theft, mit act amounting does an to more that his is true and that shows preparation than mere that tends but fails the guilty charged, Defendant as to effect the of commission the offense then could convict the Defendant [it not] V.T.C.A., Code, intended. Penal Section said unless be- further [it] 15.01(a). that there in other lieve[d] [was] application paragraph capital the the outside of the evidence of [Kaiser] murder, jury the instructed “if to connect the was that Defendant with the [it committed, beyond offense if from the evidence a reason- that an found] [it found] committed, Texas, offense County, was able that in the corrobora- doubt Harris tion Holladay, not if styled sufficient Robert Lee [would hereafter be] offense, Defendant, commission of heretofore on or Decem- show[ed] about but it must tend to connect the 31st, 1981, Defendant ber then did and there unlawful- commission, its and then from all of ly committing while in the course of or jury had believe be- [the to] attempting robbery to commit the of PAUL yond a reasonable doubt that Defend- JOEHLIN, styled Complain- hereafter guilty charged ant of the offense [was] ant, intentionally cause the death against charge him.” We find that this Complainant by stabbing the Complainant patterned McClung, after the one in found knife, hitting Complainant with a Jury Charges Prac- Texas Criminal bottle, puncturing Complainant for or tice, pp. (Rev.ed.1985). 225-226 fork, jury with a meat then [the would] guilty capital find the mur- Defendant jury The was also instructed on the of- jury beyond If der. not so find [the did] fense murder and was told that doubt, or if reasonable a reasonable ways person [it had] one commits thereof, acquit doubt the Defend- [it would] offense of murder is if he commits whether ant murder and consider V.T.C.A., Pe- offense of murder under guilty he is of the offense of murder.” Code, 19.02(a)(1), nal Section while in the committing or com- attempting course carefully jury We have reviewed the ar- V.T.C.A., robbery. mit the offense of guments in were made this cause Code, 19.03(a)(2). Penal Section respective attorneys find that the attorneys spent argu- The little time their was further instructed on the offense of murder ments on the witness instruc- and was told that mur- intentionally given der occurs if individual tions that had knowingly jury. causes the death of another indi-
Many years ago,
predeces-
rehearing).
requirement
this Court’s
The
of materiali-
sor,
Appeals,
Hoyle
however,
the Court of
ty,
gone
has come and
several
(1878),
must
when
State’s ease was based
must be
to a
accomplice
the offense committed. It
as
an
wit-
directly
tend
and
ness,
material matter
required
accom-
this Court
that an
remotely,
immediately,
merely
not
to con- plice
testimony had
witness’
to be corrobo-
with the commission of
nect
elements,
promise
to two of the
rated as
the offense.
as to immateri-
Corroboration
knowledge
carnal
female.
marry and
facts, having
tendency
al
no
to connect the
527, 218
Slaughter v.
86 Tex.Cr.R.
the commission of the of-
defendant with
S.W. 767
Ice v.
fense, is
not sufficient.
(1919),
509,
84 Tex.Cr.R.
Although been that counsel for the defendant For- truthful; testimony witness Kaiser’s was tenberry, supra, presented to this (3) grounds review, Kaiser’s itself of for of showed error none appellant challenge guilty them of the of the offense sufficiency did he the was murder; (4) evidence to of an of that there was other corroborate evidence, testimony, as to all of the elements outside of Kaiser’s knife, appellant bing puncturing him with a and that tended to connect the to the of mur- commission of the offense All him a meat fork. of the accom- der; evidence, (5) all in- from of the charged murder. plices were cluding against Kaiser became a State’s appellant guilty it believed that exchange guilty appellant in for a committing beyond doubt of reasonable aggravated robbery.” plea on murder. Id. at 435. We find that this instruction was Michael Kaiser was an wit- requirements adequate satisfy to than matter ness as a of law since he admitted provisions of Art. and it being parties primarily one of re- necessary trial was not for the during sponsible for the victim's death give a more detailed instruction the ac- robbery. Harris v. complice testimony. All witness Kaiser’s (Tex.Cr.App.1983); Kerns v. holding ex- cases conflict with our are Hendricks v. pressly overruled. appeals court of is judgment of the following gave The trial court judgment of the trial reversed and court affirmed. instruction: “The witness MICHAEL VINCENT MILLER, Judge, dissenting. KAISER, accomplice, is an if an offense disposition majority’s I of dissent to the committed, you cannot convict I grounds of would hold
the State’s error. his unless the Defendant analysis underlying this Court’s you his is first believe that State, 579 opinion Fortenberry and shows that Defendant is true worthy is (Tex.Cr.App.1979) S.W.2d 482 you cannot guilty charged, as and then I Specifically, would hold affirmation. said testimo- convict Defendant refusing modify court erred you further believe that there ny unless by appel- requested as testimony in the outside of is other inuring appellant error lant and that the VIN- of the said MICHAEL the evidence harm- of the court’s error was not because KAISER, tending to connect the CENT less. committed, offense if Defendant with the analysis my set forth In order to committed, find that an offense was you presented, a brief recitation of issues is sufficient if facts, Ap- presented by as the Court of commission shows the is peals, appropriate: tend to connect the but it must robbery showed “[The evidence] commission, and then with its Defendant by ap- was committed Joehlin [Paul] you must believe from all the evidence Beverly accomplices, pellant and the De- doubt that beyond reasonable Glock, Keane, Kai- Michael and Michael charged the offense guilty fendant Joehlin, Glock, neighbor of often ser. him. against and con- apartment cleaned Joehlin’s used, term here accomplice, An as part act as the rob- trived to do that connected with person means twenty bery Approximately scheme. charged.” crime later, accomplices pre- the other minutes tracks the wording of this her, once looking for tended to be the Witness charge, “Where suggested apartment, Michael Keane inside his Accomplice a Matter Witness ground while the knocked Joehlin charge presented Jury Law,” suggested him. others robbed Practice, Criminal Charges Texas appellant then Keane and the “Michael *9 will Rev.Ed.1985, McClung, p. 226. We P. by gruesome death Joehlin caused the charge “usual” as the bottle, to such a repeatedly stab- refer hitting a him with charge given pursuant 38.14, supra, to Art. reversible error when it overruled those objections.” an accomplice when witness is involved. Id. 486. supra, Fortenberry, defendant case, County In a later charged was murder under 708 (Tex.Cr.App.1984), S.W.2d this Court Pen.Code, 19.03(a)(1).1 An Y.T.C.A. ac- § Fortenberry, supra, proposi- cited complice against witness testified the de- tion that: fendant, gave jury and the trial court instructed, “... be the usual instruction that it not con- could request, the defendant’s that the accom- vict the defendant unless it found evidence plice testimony witness’ must be corrobo- other accomplice than that witness specific as to the rated elements that which tended to connect the make the offense a crime. Fail- the offense committed. The defendant ob- ure to so instruct constitutes
jected accomplice to the instruc- County, supra reversible error.” at 710. tion, pointing charge out that the did not brief, its State contends that the direct requirement analysis underlying the decision Forten specific elements that the of- rendered supra, First, is berry, flawed. there is no fense a crime. The trial court over- requirement 38.14, statutory in Art. V.A.C. objection. ruled the particular group C.P. that element or In considering the conten- defendant’s Second, be nothing elements corroborated. tions, although we stated that the usual distinguish capital should murder from charge given required element, other offense with a central so as supra, many sufficient, was in cases certain require jury charge a different on ac charge. offenses testimony complice witness corroboration. example, For receiving holding In order to examine For- goods concealing requires stolen tenberry, a discussion of the law indicating accomplice tes- concerning accomplice corroboration of wit- timony must be corroborated to the both as general helpful. ness Arti- theft, commission of receipt 38.14, V.A.C.C.P., provides: cle goods by knowledge the accused with the A conviction cannot be had tes- they were stolen. We added that the timony of an unless corrobo- “very should state that the basis” other to con- rated evidence charged of the offense must be corrobo- nect the defendant with offense com- rated, id. at and concluded: mitted; the corroboration not suf- 19.03(a)(1), “In murder under Sec. if it the commission ficient shows very offense. heart of the offense is that (or fireman) peace victim was a officer of an acting who of an discharge unreliable, and should is considered duty, official and that the accused knew only carefully scrutinized “not because (or peace the victim fire- officer have, might any interest he or she but man). Appellant objected specifically her or because witness instruction corrupt from a source.” Paulus v. require- failed to direct the (Tex.Cr.App.1982), and ments of the that ... law therein at 843. See also Eckert [the cases cited must be corroborated 623 S.W.2d witness’] as to the that make this a death facts Almazan
penalty (App.1940). The trial court case. committed 145 S.W.2d (1) peace person person officer or murders a "A commits offense if he commits discharge 19.02(a)(1) acting who is lawful fireman of an is a under murder as defined Section duty, person official knows and who this code and: fireman;_” peace officer or *10 204 38.14, required by supra, (App.1901). State,
As
accom
See also Hanks v.
55
plice
405,
must
witness
be corrobo
(App.1909);
Tex.Cr.R.
205
charge,
general accomplice
the rule that
wit
such a
reversible error arose. See
cases,
State,
390,
147
ness
was sufficient. In those
also Cerda v.
Tex.Cr.R.
181
(Tex.Cr.App.1944)
court
the trial
to instruct the S.W.2d 278
and Brewer
State,
jury that
the female
had to be
v.
Tex.Cr.R.
S.W. 663
(Tex.
marriage
App.1923).
as to the
of
promise
corroborated
Cr.
illicit
Slaughter
and the
intercourse.
cases,
preceding
apparent
From the
it is
(App.
Slaughter,
follows:
particu-
The basis for this rule involves the
proceed
“The law of seduction
does
type
being
lar
of offense
tried.
alleged
the idea that the
seduced
criminis,
is a particeps
female
but re-
offenses,
general
most
gards
light
her more in the
of a victim
others,
witness rule is
as
sufficient.
overreached, seduced,
who has been
demonstrated,
previously
must be
by
through deceptive
debauched
instructed that the
of the accom
promises
wiles
seducer and
plice
be
to
witness must
corroborated as
one who would not
surrendered
“very
offense,”
have
her
heart of the
Fortenber
deception.
elements,”
virtue but for such
ry, supra,
This aids
or
essential
“the two
legal presumption
chastity.
Johnson,
concept
supra.
But
of this occa
remaining
longer
exception
general
the fact
that
is no
she
sional
to
rule was
woman,
being
tacitly approved
Legislature
chaste
by
and as
one who has
when
fallen,
they
without
decided that the offense of criminal
reference
the means
used,
consented,
she
solicitation
“dual”
having
imputes
also merited
corrobora
Richardson, supra.
her that want of
tion.
moral stamina which
prevent
being governed
would
her from
As
change,
times
list of crimes that
revenge
by
resorting
any
or
means
gravamen
demand corroboration for the
which her social condition would or could
may change.
the offense
Such is the na-
regards
danger
be bettered. The
law
as the
ture
the law. Just
mores of the
might
placed,
man
be
day
required special protection
in 1920
though
innocent,
entirely
if the same
against a female
the accused
witness’4
weight
given
and credit
be
testi-
“wiles, interests,
revenge
or other mo-
mony
a woman of
kind as
to one
tive,”
I
Slaughter, supra, would find moral
whose
character had not been cor-
Fortenberry,
applies
the rationale
as
rupted to such
to cause
extent as
her to
murder cases has not been affect-
part with her virtue. Hence the law
by any change
years
in mores in
ed
the six
requires
protection
corroboration as
majority
since its rendition. The
should
wiles, interests,
against her
or revenge
hold that
” [emphasis
or other motive.
added]
corroborated,
must be
murder
quoting
at 769
Id.
from Nash
to the element
elevates the
259, 287, 134
so,
potential punishment
723. The
to death. This is
Tex.Cr.R.
S.W.
just
any contemporary
concluded
Court
that “There must be addi not
because of
dis-
(as
probative
tional evidence
of the
trust of certain
seems
past
and therefore of those acts
defend
have been the case
constituting it, namely,
Legislature),
ant
the act of inter
and the
but also be-
inducing
society rightfully
intercourse
course
cause
caution
promise marriage.”
at 770. Absent
continues to exercise when
State seeks
Id.
antiquated
(Tex.Cr.App.1985),
time also dictat-
con-
mores of that
S.W.2d 924
Judge
such a case
curring opinion by
ed that
female witness in
Miller.
"prosecutrix."
referred to as a
See Allen v.
punishment
to exact the ultimate
life
prove
beyond
each element of an offense
—a
for a life.
a reasonable doubt.”
previously stated,
hold,
my
As
in no
therefore,
way
views
I would
in the con-
concerning
affect the law
crime,
evidence suffi-
text of a
when
ciency.
Thompson
witness rule demands corrobo-
*12
With
tending to
re-
ration
connect the defendant
burden,
committed,
gard
upholding
to the State’s
with the offense
the term “of-
in Fortenberry,
supra,
committed”
rule
would not af-
fense
necessitates corrobora-
very
requirement
proof
tion of the
element that elevates the
fect
that sufficient
status,
every
crime to
as corrobo-
introduced on
element of an
as well
be
of-
Moreover,
the underlying
supra,
ration for
offense that
fense.
does
elevating
require,
would be demanded
absent
not
nor would we need to affix
fact.
requirement,
that the
be corrob-
every
orated as to
element
offense.
Thus,
proper
request,
the trial
would, however,
I
the term “of-
construe
must instruct
that the ac-
court
fense committed” to refer to the material
complice
must be corrob-
comprising
gravamen
elements
the basis or
orated as to both the
and the act
murder
of the offense in a
murder case.
raising
the murder to
offense sta-
analy-
Having
holding and
reversible error
if the trial
reaffirmed the
tus:
will arise
in
Although
Fortenberry,
majority
fails to do so.
not stated
sis in
court
manner,
proposition
Appeals
was the
find that the
cor-
the same
should
Court of
holding
supra.
in
I
Fortenberry,
rectly
basic
be-
held that
the trial court erred
suggested
that there is no
reason to de-
refusing modify
charge
lieve
sound
to
as
interpretation,
part
Moreover,
from this
nor discontin- by appellant.
this Court’s deci-
application.
ue its
sion in Almanza v.
that —let me reverse might
That help.
That the accomplice present-
ly stated does not apply the law to the specifically
facts that it does not name applied
the elements of the offense as accomplices within law of and does DORSEY, Tommy Appellant, L. specifically not that such mention ele- ments must be corroborated.
“THE COURT: I still don’t understand. Texas, Appellee. The STATE of “DEFENSE As the accom- COUNSEL: No. 234-85. stated, plice charge presently it does Texas, Appeals Court of Criminal apply not the law to facts in that it En Banc. specifically does mention or set forth offense, i.e., capital elements of 7,May murder, and then that such ele- mention must, fact, ments be corroborated. you
“THE COURT: How would want me change law on accom- add onto the I
plices already as have defined it? example, For
“DEFENSE COUNSEL: putting intending, the words after after charge,
Michael Vincent Kaiser says, ‘tending to connect the
where ’ committed, with the offense