Kunkle v. State

CREDIT ASSOCIATION PRODUCTION TEXAS et al.

OF SOUTH

The Honorable Solomon

CASSEB, Judge.

No. C-8547.

Supreme Court of Texas. 7,

June 1989. 1989, April this

The order of Court petition to file

granting the motion leave mandamus is withdrawn.

for writ of April

stay order issued this Court on

1989 is dissolved. petition for leave to file

The motion

writ of mandamus is overruled. KUNKLE, Appellant,

Troy Albert Texas, Appellee.

The STATE

No. Texas, Appeals of of Criminal

Court

En Banc. 18, 1986.

June 3, 1989.

Certiorari Denied July

See 109 S.Ct. 3259. All were “party.” five individuals

beach alcohol and L.S.D. at the influence of under time. destination, Stan- route to their While en pistol .22 from ley removed a loaded caliber car, glove compartment of the and fired asking if Adkins it into the air while money. Stanley told to make Sauls wanted mix,” whereupon “guns and acid don’t that gun glove com- returned the to the Stanley Stanley gun sever- partment. removed times. al other committing Stanley and Adkins discussed they robbery, times slowed and several the chances of commit- down to evaluate Christi, III, Rogers, Corpus Richard W. occupants of cars ting robbery upon the appellant. for Although Sauls parked on the roadside. Jones, Poyn- Atty. Dist. and Leslie Grant hearing of the discus- within distance was ter, Christi, Atty., Corpus Asst. Dist. Rob- sions, part not take in them. he did Huttash, Austin, Atty., for the ert State’s Christi, arriving Corpus the five After State. Zaiontz, Appellant and drove to the beach. girlfriend, kept to themselves while his together Stanley, Adkins and Sauls walked robbing someone. Sauls was and discussed OPINION dis- not contribute to the present, but did MILLER, Judge. cussion. appeal This is an taken from a conviction the beach and went to a The five left Code, for murder. Penal V.T.C.A. buy some beer. convenience store to penalty imposed 19.03. The death was § There, a man Stanley and Adkins robbed affirmatively after the answered gunpoint, and phone booth at obtained 37.071, special submitted under Art. issues Appellant and the other two seven dollars. Appellant brings twelve V.A.C.C.P. in the car while the rob- persons remained grounds of error this before Court. We place, could not see the actu- bery took but affirm. in the robbery. participate did not al Sauls proceeds. Appellant’s eight grounds first of error or share in its regarding concern the laws wit- Next, store left the convenience the five nesses, one of the was whether witnesses looking for someone else around and drove witness, the trial court’s Horton, Stephen They spotted to rob. charge jury on matters. In to the these deceased, Adkins walking along the road. dispose grounds, of these as well order to and Zaiontz up car Horton drove the beside by appellant, a grounds as other raised a ride. Horton Horton if he wanted asked necessary. brief recitation of the facts only a few blocks replied that he lived finally persuaded to enter away, but was August The record shows that on seat, next got in the front the car. Horton approximately p.m., appellant at 6:00 to Zaiontz. co-defendants, Lee Lora and his three Adkins, Zaiontz, Stanley Russell and Aaron of Hor- gun to the back Stanley put go Corpus give left Antonio to Christi. them his San him to head and told ton’s Appellant years old at the time of to look at Horton turned wallet. When Sauls, into the not in- her nails Stanley, the offense. Tom who was Zaiontz stuck for- him to look stemming from face and told offense side of his dicted kill Hor- Stanley to activities, Appellant told present. also Sauls ward. these Stanley ton, Stanley refused because going but the five were believed requested killing necessary. fusing appellant’s did not believe that a instruction to Stanley just wanted to “beat charge [Horton’s] on guilt the court’s or innocence gun Appellant away ass.” took the then an accomplice Tom Sauls was Stanley, up from stuck it Horton’s as a of law. matter of his said, going to you head and “We’re take contention, appellant refers to the follow- here and your back blow brains out.” Ad- ing brought during forth trial. rink, skating kins drove car behind a record shows Sauls knew about shot Horton back of others planned to commit robberies door, They opened the head. the car protested prior to their but never commis- out, pushed body and Zaiontz took Hor- sion. entered into discussions about Sauls shooting Horton, appel- ton’s wallet. After the and was it.”2 After robberies “for the death, day, stated lant “another another sorrow, Later, booth, phone of the man in the another another breath.”1 he also stated murder that the was beauti- much money Sauls wanted to know how ful. Appellant’s attorney was asked obtained. Sauls, car, got Horton into the murder, before

After the Sauls “freaked out thing just the whole sat there scared.” have others whether he would told the to stated he complained Sauls that when lights.” “police “cool it” if he had seen the murder they about and said that did not Last, responded Sauls that would have. Horton, Stanley pointed to kill the have money Sauls from Horton’s mur- knew gun you told him at Sauls’ head and “[I]f buy for provisions der used to the the was up, going you, shut to don’t I am shoot outing. lake he “shut up, too.” Sauls stated that Appellant contends that this evidence out just . -.. sat there and stared the win- clearly an establishes that was ac- way the rest of home.” The oth- Sauls dow the nothing as had though happened ers acted complice Therefore, as a matter of law. they as drove back to San Antonio. the court reversible error trial committed jury in charge when it refused to the ac- Antonio, they in the

When arrived San place. spent night five in the same The the evidence. cordance with they Canyon day, next to Lake. went appellant’s to conten- responds State why asked went with the oth- When Sauls asserting tions that the record devoid lake, ers to the he stated: committed an any evidence that Sauls well, I I thought “Because it didn’t— to others promote act or assist the to, strange would be awful for me not Stanley any testi- commission of offense. everything together. we else because did participate fied did that Sauls not eye on me so I keeping It was sort murder, simply present at the scene of go police.” to the wouldn’t offense, nothing help did others he was Sauls also testified that afraid Horton, not voice an murder and rob did police. later contacted call He was offense, handled opinion never as to officers, every- police Austin and told them happened. wallet, encouraged the oth- thing that Sauls was never ar- Horton’s never charged any arising rested or offense aid, offense, did not ers to commit out of murder. help any of others solicit or of the offense. commission 1. WAS SAULS AN ACCOMPLICE stand, he stated When Sauls took the A MATTER WITNESS AS beach thought they gone OF LAW? had that he people. He “party” instead to rob error, first In his his he told the others court in re- added that when contends that the trial erred appellant’s attor- lyrics the time. When these words are Sauls made at 1. The record shows that say, song. ney Stanley you from "And if had asked it, you what based on for it or [Sauls] just going Stanley Sauls was 2. indicated that it.” say ”, Stanley responded, was for “He — robberies, along about the with the discussions any specific statements but could remember the issue to the even they up. told him to shut After submit opinion, murder, though weighs he “freaked in favor of the Sauls stated that the evidence incident. He that he out” over the stated the witness is an accom- conclusion Carrillo, supra, encourage help nor the others rob did not plice as a matter of law. anyone. asked he served as When whether and cases cited therein at murder, during the he stated a look-out us, there no In the case before “No.” The State contends that this evi- participated in actually that Sauls dence that Sauls was not an accom- shows deceased. robbery and murder of the plice a matter of law or as a matter of murder, was not indicted Sauls fact. arising the actions nor offense from An is someone night mur place took on the participated has with someone else who there was no evidence that der. Since before, during after the commission of a murder, participated he was Sauls crime. Harris v. not an witness as a matter Russell v. (Tex.Cr.App.1983); law. denied, cert. (Tex.Cr.App.1980), Moreover, presence at the scene of Sauls’ 1003, 101 449 S.Ct. 66 L.Ed.2d 300 U.S. him an accom- the murder does not render State, v. (1981); Carrillo 591 S.W.2d 876 plice as a matter of law. Sauls’ witness State, (Tex.Cr.App.1979); Arney v. 580 antic- testimony indicated that he did not Villarreal (Tex.Cr.App.1979); S.W.2d 836 occur, he did ipate that the murder would State, v. (Tex.Cr.App.1978), 576 S.W.2d 51 nothing in commission of the to assist denied, 885, 100 cert. 444 62 U.S. S.Ct. offense, attempted when he to voice State, (1979); Ferguson v. L.Ed.2d 114 573 objections his he was silenced the others (Tex.Cr.App.1978), 516 and cases Last, if injury. on threat of even Sauls at 523. cited therein robbery of the man in the knew about the prose If cannot the witness be booth, phone complicity in that crime would for the offense the ac cuted with which he deemed necessarily not mandate that be charged, cused is then the witness is not an accomplice an witness. accomplice as a matter of law. witness support the con- The evidence does Harris, Carrillo, supra; Easter v. supra; accomplice clusion that Sauls was an wit- State, (Tex.Cr.App.1976); 223 536 S.W.2d Thus, the trial ness as a matter law. State, 187, 346 Morgan v. 171 Tex.Cr.R. failing appel- did not err in to submit court Moreover, (1961). S.W.2d 116 a witness is charge stating that requested jury lant’s accomplice merely not an witness because accomplice as a mat- was an witness Sauls did not he or she knew of the offense and ground Appellant’s first ter of law. Russell, it, disclose or even concealed it. error is overruled. Villarreal, Easter, supra; supra; supra. presence scene of the The witness’ at the crime does not render that witness an ac A ISSUE RAISED 2. WAS FACTUAL State, complice witness. Brown v. AN SAULS WAS AS TO WHETHER supra; Russell, (Tex.Cr.App.1982); S.W.2d 275 WITNESS? ACCOMPLICE Last, complicity ney, supra.

Ar argues first Appellant also his in the commission of another an accused the facts raised a factual of review that testi does not make that witness’ offense accomplice. Sauls was an issue whether for the mony that of witness accom- argues that Sauls was an Appellant if accused is on trial offense for which the robbery of the plice because he knew complic showing no of the witness’ there is store, no he made man at convenience Carrillo, supra; Cara ity in that offense. anoth- group when attempt to abandon State, (Tex.Cr.App. way he looked for robbery planned, er 1977). induced victim, Horton to he he allowed car, on the lookout entering the he was into

If is doubt whether witness the oth- warned witness, police and would have the trial court is an ers if any, he had seen he Stanley trial, knew the defendant was on the trial court gun, had a loaded and he group knew the did not err in refusing charge. was serious. In Caraway v. (Tex.Cr.App.1977), the defendant was First, appellant’s we must excise from charged with a murder committed after a allegations support of his claim those appeal, series of thefts. On the defendant facts not found in the record. There is no contended that one of the witnesses was an evidence that group Sauls “knew the accomplice. although We held that the wit- Also, mentioned, serious.” previously participated ness had with the defendant in appellant’s attorney if, when asked Sauls thefts, commission of the since there was got car, before Horton into the Sauls would no evidence of affirmative act on the have told the other’s to “cool it” if he had part murder, witness’ assist police lights, seen Sauls said that he would accomplice. was not an have. When Sauls was specifically asked In Ferguson whether he acted as a lookout for the oth- S.W.2d 516 ers, (Tex.Cr.App.1978), responded he defendant “No.” We find charged appeal, murder. response Sauls’ one On was not sufficient to argued that one of the witnesses was an show that he served as a lookout for the accomplice because the witness furnished during others commission of the weapon the murder and hid it after com- Last, and murder. there is no evidence in offense, mission of the jacket furnished a the record to the assertion that during worn robbery, at one time Sauls finding assisted the others in a vic- agreed participate in commission of the Rather, tim. the evidence shows that Sauls offense, spent money he knew was participate did not and was during robbery. obtained We held that robbery and murder. there was no evidence that the witness excluded, When this evidence is the intentionally weapon, hid the nor was there remaining evidence by appellant referred to evidence that he had in aided commission of support as capital Thus, his claim does not raise a the murder. he was not an factual issue as to accomplice whether Sauls was an witness. accomplice witness. In order to be an ac These may cases be contrasted with the complice witness, there must be some evi State, presented in Harris v. facts 645 act on the witness’ dence of an affirmative There, S.W.2d 447 the

part to assist in commission of the offense. charged defendant was with mur- support Several cases this rule. der. The evidence showed that the defen- person dant and another had enlisted the Chappell jump-starting aid of a truck in driver their (Tex.Cr.App.1975), the defendant claimed standing car. While the truck driver was the by failing trial court erred to truck, in front of his pushed the defendant charge jury that one of the State’s chest, fell, in the man and after he accomplice witnesses was an witness Then, pinned defendant him down. the de- law, matter of or as a matter fact. The fendant by repeatedly killed the man strik- jail State called two witnesses who were in ing him in jack. the head a car Dur- with with the defendant at the time the offense ing killing, the witness the defendant testimony committed. The was of the wit- accomplice got contended was an witness argued ness the defendant should have into the deceased’s truck. The defendant accomplice been considered an witness argued appeal on that the trial court had showed that he have been aware failing in jury erred to submit to the proposed escape, and did inform the question of an whether witness was jailors. par- repeatedly The witness denied accomplice witness. The Court stated: ticipation in held the scheme. We showing since present there was no evidence “The in case part affirmative act on the witness’ to as- showed that Rencher was [the witness] in present sist commission of the offense for and fled the scene of the murder vehicle, (Tex.Cr.App.1981), vacated in deceased’s 618 S.W.2d with the others 959, 102 grounds, other 454 U.S. S.Ct. tape deck. on listening to radio and (1981), affirmed on Furthermore, (and may L.Ed.2d 374 she had overhead commuta- understood) of Governor’s may not was remand because have what life, 632 S.W.2d 751 up tion of sentence to happen. She wound with about (Tex.Cr.App.1982); Caraway, supra at her, possession of the on took blood Easter, supra. killing citing for the killers while the truck progress, willingly remained with Thus, fails to raise a fact the evidence them, and held for six was arrested was an ac- question as to whether Sauls months, attempted escape from custo- The trial court would complice witness. dy, expressed point the belief at one refusing charge not have erred guilty, made a deal she was accomplice jury on whether Sauls was gave prosecution testimony for her as matter as a matter law or witness accounts of what had tran- inconsistent ground of error Appellant’s of fact. first spired. is overruled. REMAINING GROUNDS APPELLANT’S charged so should have been error, ap In his second Rencher was an whether pellant contends that the evidence is insuf testimony her was corrobo- whether ficient to sustain the conviction because testimony rated. Her actions and no corroboration of whole, especially the evidence as a her testimony. witness Sauls’ Since we have taking possession actions not an accom determined that Sauls was permission truck without or instruc- fact, no plice as a matter of law or by anyone, killing tion while the testimony of his was neces corroboration progress, the fact is- still sue_” raised along sary. testimony, hold that his We added). (emphasis trial, the other evidence adduced at at 458-9. Id. the conviction. was sufficient Thus, preceding as shown Thompson v. See cases, there must some of an be State, 505 (Tex.Cr.App.1976),and Brown v. by affirmative act the witness committed to (Tex.Cr.App.1974). Appellant’s S.W.2d 850 in assist commission of the offense before ground of error is overruled. second that witness be considered an accom error, appel In his third us, however, plice. In the case before by that the trial court erred lant contends there was no such evidence. Even if Sauls overruling appellant’s objection to the prior robbery, about the failed to knew charge failed to in charge because the group, permitted abandon the Horton to be jury types of criminal struct vehicle, entering induced into Penal responsibility set out V.T.C.A. (but not) if would told the others did have Code, 7.02(a)(1), (a)(3) (b), ap which § police, he not to he saw would be shown applicable to the is pellant contends were committed an act order have affirmative accomplice sue of whether Sauls was to in the murder. the absence of assist witness. act, such an he cannot be an witness, as a matter of fact. even responsibility regarding criminal The law Code, 7.02, is set forth in V.T.C.A. Penal § Also, any had connection Sauls with states: at the convenience robbery of the man (a) criminally responsible person A is render him an store would not by the conduct of an offense committed Horton’s murder in the absence witness to another if: showing complicity Sauls’ of some evidence (1) culpability acting the kind of murder. See with commission of the offense, he or Texas, required for the causes 100 S.Ct. Adams v. U.S. per- (1980); nonresponsible or aids an innocent May 65 L.Ed.2d 581 engage son to prohibited conduct by by corroborated other evidence tending offense; the definition of the to connect the Defendant with the of- (2) charged. acting corroboration, fense The promote with intent to if or any, is not offense, merely assist the sufficient if it commission of the shows solicits, directs, encourages, aids, offense, he commission of the or but it attempts person to aid the other must tend to connect to the Defendant with offense; commit the or its commission.” (3) having legal duty prevent a com-

mission of the acting offense and 8. promote intent to or assist its commis- you “If find from beyond the evidence sion, he fails to make a reasonable Troy Kunkle, reasonable doubt that prevent effort commission Nueces County, Texas on or about the offense. 12th day August, 1984, did then and (b) If, in the attempt carry out a con- intentionally cause the death of spiracy to commit felony, one another Stephen by Horton shooting him with a felony is by committed one of the con- firearm in the committing course of rob- spirators, conspirators all guilty are bery Stephen Horton, you but find felony actually committed, though from beyond the evidence a reasonable having it, no intent to commit if the witness, Sauls, doubt that the Tom did offense was committed in furtherance of intent, any, know of the if of the said purpose the unlawful and was one that Troy Kunkle to cause the death of Ste- should anticipated have been as a result phen by shooting Horton him with a fire- carrying of the out conspiracy. arm in committing the course of portion charge or, relevant Stephen read if Horton even Tom Sauls stated: knowledge had of such intent of Troy

Kunkle, that Tom Sauls did not act with promote intent to or assist commis- sion of by Troy by the offense Kunkle person “A criminally responsible is soliciting, encouraging, directing, aiding, party to an offense if the offense is attempting or Troy to aid Kunkle to com- by conduct, committed by his own offense, you mit the then will find the conduct of another for which he is crimi- witness, Sauls, Tom was not an accom- nally responsible, person A both. plice to the offense of murder. criminally responsible for an offense if, you beyond committed the conduct of Unless so find a reason- another doubt, acting promote you with intent able or if or assist have reasonable thereof, offense, you doubt commission of the will find that the wit- soli- cits, ness, directs, aids, Sauls, encourages, accomplice Tom was an or at- the tempts person capital to aid the other offense of to commit murder.” the offense. presence

Mere alone will not constitute party one a to an offense. “If you find from the evidence that the An accomplice as the is here word used witness, Sauls, accomplice, Tom was an anyone means party, connected as a as you thereof, or have a reasonable doubt above, defined charged. with the crime you then are if you instructed that find

You are beyond instructed that a conviction that an of- reasonable doubt upon cannot testimony committed, be had the of you an fense was cannot convict accomplice jury unless the Defendant, Kunkle, first believe Troy capital the of accomplice’s that testimony the upon testimony is murder of the Tom Sauls [sic] true and that it the you shows Defendant is unless first believe that his testimo- guilty charged against of ny the offense is true and the shows that Defendant him, you and even then cannot guilty charged; you convict is as then even testimony accomplice unless the of the is cannot you convict the Defendant unless appellant’s third that other evi- therefore overrule further believe there is We case, testimony in this outside the error. ground dence of Sauls, tending to connect the of Tom error, ground appellant In his fourth of committed, the if with offense Defendant by over- that the trial court erred contends find that an committed you offense was objection charge ruling appellant’s tending to that the Defen- establish charge the did not set forth because the Kunkle, dant, Troy intentionally caused an as to whether Sauls was correct law shooting Stephen by of the death Horton find accomplice jury since the could witness com- a firearm in the course of him with party involved that he was as Horton, robbery mitting Stephen of aggravated and murder but still all the must you then from evidence be- accomplice pur- an for the not find Sauls the beyond a doubt that lieve reasonable poses of the witness corrobora- guilty murder. capital Defendant of error, ground In his fifth of tion rule. corroboration, suffi- any, The if is not contends trial court the merely if it the commission cient shows overruling appellant’s objection to by erred offense, to con- the but it must tend of charge charge required the because Defendant nect the its commission with mur- appellant guilty find of jury to to establish that the Defendant and tend it could find Sauls der before consider and intentionally Stephen caused of the death ground In his sixth witness. shooting by him a firearm Horton with error, appellant that the trial contends committing robbery course of of Ste- failing language court erred to include phen Horton.” “accomplice witness” in the definition portion charge jury read to the indicating that included all definition responsibility the issue of criminal fol- persons connected with the crime unlaw- 7.02(a)(2). that set forth lowed above § part transpir- ful act or omission on their therefore We must determine whether ing during or commission either before failing erred in trial court to submit offense, refused shown [matter responsibili- three bases criminal other Appellant emphasis]. contends with ty. given narrow a charge contained too The record is devoid evidence an accomplice standard since responsibility raise issues criminal would acting commission someone before the be 7.02(a)(1) (a)(3). Thus, the trial under § crime, according supra. Ferguson, of a by failing not err court did to instruct error, eighth appellant’s responsi- theories jury on these of criminal in re- the trial court erred contends that generally bility. See Guerrero poten- fusing jury to instruct on Sauls’ Also, accomplice witness under V.T. tial status raising there was we find that no evidence Code, 7.02(a)(3), con- C.A. Penal § conspired possibility that Sauls prevent com- persons duty cerns deceased, to rob the and that others prevent an offense fail to mission of who anticipated as a murder should have been to assist of the offense in order commission robbery. Thus, court the trial result have found commission. Since we its by failing instruct the did not err did an issue not raise that the court by appellant. The trial requested an accom- regarding whether Sauls was (out of charged jury an abundance of witness, in these presented no error is plice out, since we have precaution it turns they are grounds, and overruled. found, ante, give an accom- that refusal to error, ap of ground In his seventh charge in not this case would plice witness erred court pellant contends the trial error) theory of only have been of charge on the law refusing jury to to responsibility arguably relevant criminal 7.02(b), responsibility under Sec. case, criminal charge given the facts and felony concerns committed supra, fully appellant as adequate protect to conspiracy. carrying out a v. in the course the matters included. See Skidmore to did discussed, the evidence State, (Tex.Cr.App.1975). previously As 316 530 S.W.2d 444

not regarding raise issues interject supported whether facts by not the record. State, conspiracy, Sauls was involved in a C.f. Cannon v. wheth- (Tex. 668 S.W.2d 401 capital er the murder was State, committed Jordan v. Cr.App.1984), furtherance of the conspiracy, and whether (Tex.Cr.App.1983) 946 and Berryhill v. capital commission of the murder should State, 501 S.W.2d 86 Thus, anticipated. have been the trial Moreover, even if the statements were im court did refusing appellant’s not err in proper, since the trial court sustained the requested Appellant’s instruction. seventh objection, any error would constitute re ground of error is overruled. only versible error if it was manifestly State, improper or extreme. Brandley v. ground error, In his ninth appellant (Tex.Cr.App.1985), contends that the by trial court erred over- 712-713; Franklin v. cases cited therein at ruling appellant’s motion for mistrial when State, (Tex.Cr.App.1985), 693 420 S.W.2d prosecutor referred to facts outside of and cases cited therein at 429. We find during argument, the record final and also that the statements were not of the tenor argues that the trial court erred overrul- to Appellant’s mandate reversal. ninth ing objection his to additional reference to ground of error is overruled. facts Appellant objects outside the record. to following statement made ground error, his twelfth prosecutor during argument final contends that the trial court erred in over- guilt/innocence stage of trial: ruling appellant’s challenging motion “It is not decided that Tom Sauls was not qualification” questions. “death voir dire upon based what Tom Appellant requested pre- the trial court to Sauls said alone. Think back about all of potential qualifying vent the State from something evidence. This is that ei- jurors feelings upon based their toward intentionally ther unintentionally or has capital argues punishment. Appellant brought your been to attention motion, ..., “The Court overruled the Sergeants defense counsel. Messer and thereby intent manifested the Court’s to Broughton discussed the facts this disqualify jurors jury from the those who case and received information from other scruples against held the death absolute sources.” penalty.” brief, p. Appellant’s Appellant’s objection prosecutor jurors Appellant refers us to no going outside of the record was sus- against his placed jury who were on the tained, and the trial court instructed the wishes, any improper by the trial action disregard statement; however, refusing grant appellant’s court in chal appellant’s motion for mistrial was denied. Also, lenges. Thus, no harm is shown. responded ground State has to this permitted potential examine State is error, sup- and indicates that the record jurors regarding murder their atti ports prosecutor’s statement. When regarding pen tudes the death and beliefs prosecutor Sergeant examined J. Mes- See also Chambers alty. 35.16(b)(3). Art. ser, examination, on direct the officer testi- (Tex.Cr.App.1978), 568 313 fied that he had traveled to San Antonio denied, 1264, cert. 928, 99 S.Ct. U.S. sergeant, with another and met awith San (1979) and Moore L.Ed.2d 484 police Ranger. Antonio officer and Texas denied, (Tex.Cr.App.1976), cert. S.W.2d 664 There, they discussed the crime committed 53 L.Ed.2d 266 U.S. 97 S.Ct. Corpus Christi, developed a list of (1977). Appellant’s ground of er twelfth suspects potential witness, four and one ror is overruled. Later, Tom Sauls. Messer located Sauls in Appellant objection Austin. made no error, appel In his tenth testimony. this insufficient evi lant contends that there is prove beyond that doubt

We find statements dence to a reasonable by prosecutor upon appellant made of de were based that caused the death 37.071(b)(1), presented jury, deliberately. evidence to the and did not ceased Art. See

445 head, and of Horton’s argues the evi- ed it to back Appellant that V.A.C.C.P. you here going to take back acting stated “we are he under the dence shows that Afterwards, out.” your brains the offense and blow of L.S.D. at the time influence car, sitting appellant in the shot still that L.S.D. while committed and also shows find the head. We Horton in the back person of the conse- renders a unaware .of could have trier of fact person that a rational prevents of his acts and a quences that beyond a reasonable doubt careful, thorough found acting with consid- from facts, deliber- appellant acted that based on the Appellant concludes while eration. ately. does not free him from drug intoxication preclude the responsibility, it does criminal regard appellant’s claim that With proving from his conduct was deliber- State drugs ingested he rendered effects of the where beyond ate a reasonable doubt: acting deliberately and incapable him appel- that is no evidence to show murder, precluded a conviction conduct cannot be attributed lant’s trier of jury was the sole we find that the finding drug, there can be no effects Thus, it could proceedings. in the fact Appellant deliberate. that his conduct was regard- reject any of the evidence accept or authority for his conclusion. cites no appellant on at the ing the effects of L.S.D. The effects of L.S.D. time the murder. considering appellant’s claim that the by the considered appellant, whether he insufficient to show that evidence was not, require Court to do not this jury deliberately, we must evaluate acted review. There was change its standard of light most favorable to the evidence evidence, despite the sufficient any and determine whether rational

verdict use, finding drug support jury’s that finding trier of fact could have made the deliberately. Appellant’s appellant acted beyond a reasonable doubt. v. Goodman is overruled. ground tenth of error State, at (Tex.Cr.App.1985), 701 850 State, 866, citing DeGarmo v. 691 S.W.2d error, appellant In his eleventh at (Tex.Cr.App.1985) and cases therein evi there was insufficient contends that beyond a reasonable doubt prove dence to probability a that there was “deliberately” is not defined The term violence that commit criminal acts of would statute, and is therefore taken and under continuing threat to so constitute a would stood in its normal use in common lan in argues that since the ciety. Appellant State, guage. v. Stewart only act violence stant offense was is not re (Tex.Cr.App.1984). The State him, have committed shown to been prove premeditation or that the quired to support there is insufficient evidence carefully weighed, considered or defendant finding he a continu jury’s would be killing the de studied the situation before considering appel society. In ing threat to finding in order to ceased contention, same standard we use the lant’s State, deliberately. acted Smith v. disposition set forth our of review (Tex.Cr.App.1984). See also S.W.2d 379 must evalu ground of error: we preceding Goodman, supra, and v. Granviel light most favorable the evidence in the ate (Tex.Cr.App.1976),cert. de 552 S.W.2d 107 and determine whether to the verdict nied, 97 S.Ct. 431 U.S. could have made rational trier of fact (1977). In L.Ed.2d 250 Cannon doubt. Fierro finding beyond a reasonable stat (Tex.Cr.App.1985),we 691 S.W.2d 664 (Tex.Cr.App.1986); State, 706 S.W.2d 310 defendant in order to find that the ed that Cannon, supra; Bar Goodman, supra; to be the deliberately, there needed acted (Tex.Cr.App. State, row v. and the determina moment of deliberation 1984). tion to kill. defen deciding whether bar, When the facts show that In the case at acts of violence Horton, commit future dant will Stanley to shoot appellant ordered continuing threat so, constitute appel- do that would Stanley declined to and when all of him, may consider point- society, gun away grabbed from lant guilt evidence raised at stage working of trial. Before for Bexar County, Abbott Fierro, supra, p. and cases cited therein employed at was as psychologist for the 319. The circumstances of the Independent offense and Northeast School District. surrounding may provide great the facts it held a Abbott and Bachelor’s Master’s de- probative er gree than other evi in psychology from Southwest Texas regarding dence presented this issue University, at the State and a Doctorate of Psy- phase penalty chology Brigham trial. Id. See also Young from University. (Tex.Cr. Russell v. 665 S.W.2d 771 appellant Abbott had worked with when App.1983); and Mitchell v. 650 appellant was enrolled the Center S.W.2d 801 appellant School. He testified that had a very attitude, lackadaisical and bar, surly. was In the during pun case at When asked if he opinion had formed an stage trial, ishment of the State called Wal appellant whether would Howard, commit future ter principal an assistant violence, acts of Abbott stated that high based appellant school attended. Howard upon appellant: his observations of stated that he personal had had several appellant appellant contacts with flagrant disregard when “He had a for the infractions, truancy, rights others; committed such as and needs of did not seem smoking disruptions. and classroom system He to have internalized a value appellant general added that had a dis was consistent with what we—what I regard rules, for school was majority society characterized think the or communi- truant, as a ty espouse. habitual and would become would He tended to blame belligerent hostile and people, problems when confronted other would arise Appellant with his violations. up was trans when he bounced rules. He high people, ferred out of the would tend to blame other school to Center would School, designed anger,.... show some I which was to deal with would have to say that Mr. Kunkle would at problems. children with emotional be risk for When aggression.” future if acts of opinion asked Howard had formed an appellant to whether would commit acts of Garza, The State also called Edward who future, violence in the he stated that he employed sergeant/detective as a appellant considered abe threat to socie City Corpus Depart- Christi Police ty. ap- ment. He testified that assisted pellant’s arrest, and discovered a loaded .22 Evans, prin- State called Frances appellant caliber revolver when School, cipal testify. of Center Evans weapon frisked. The later found to taught testified that she had for a number have been stolen. years, degree counseling obtained a and counseled students for a number during punish- After the State rested years, and then obtained an administrator’s trial, stage Appellant called his ment certificate. stated She had stand, ap- father to the testified that who undergone battery psychological tests arrested, pellant had been and that never School, in order to transferred to be Center appellant if help support ap- he would following difficulty and had rules. Evans pellant prison Appel- for life. were sent to upon knowledge, added that her based stand, lant also called his mother to the predictors often used in schools and help him if he who testified that she would business, appellant would have “trouble received a life sentence.

adhering regulations placed that are appellant’s In to address conten- order people regular on a basis.” tion, previous a brief discussion of several

Next, called David Abbott. State insuffi- cases where we found the evidence employed finding was at the time of trial jury’s Abbott cient to of future County Program Roney the Bexar Adult Pro- dangerousness appropriate. Department. position, State, (Tex.Cr.App.1982), bation Prior to that psychologist charged he served as a for the Bexar the defendant was County Psychiatric Department. murder murder committed the course Medical beyond a reasonable doubt that that on the show robbery. of facts show offense, Hoang Nguyen probability appellant date of the Viet is a would there working Man Thi Tran were at a U-To- and criminal acts of violence that commit Houston, Haugh- tem store when Trevor continuing threat to constitute a would witness, ton, as an who testified society. To hold that the facts this the store. He left and returned entered offense, alone, support standing would the defendant and Jesse Andrews. with verdict, virtually that would mean such The defendant was armed with a sawed-off of a every murder course shotgun. The two victims were searched penalty. the death Such warrant would Money from the money. for was taken purpose destroy the a construction would register, and one of the victims was cash mur- punishment stage capital open to the safe. ordered and was unable cases, provide is to a reason- der Haughton ran out of the store to check for decision on whether and controlled able cars, then ran to their car because he was imposed, and penalty the death should be car, also ran to the scared. Andrews capricious its and arbi- guard to they in the car heard both men were when trary imposition, [citations omitted]” shotgun only eye- Tran blast. was the Id. testify, to the murder to and stated Hoang concerning his he that had hands raised when the evidence We considered persons shot. The called other State it the defendant’s attitude and held who testified that the defendant had called significant toward made no contribution of others to he had done the attention what proof. discharge State’s burden point laughed. and at one He also claimed Also, repeatedly the defendant had claimed several times that he been forced had that he “had to kill” to defend himself. kill the victim to defend himself. Last, the extraneous rob- we found primary bery committed minutes before the appeal, the claimed that On defendant one-night part offense of a crime support insufficient jury’s finding spree, repetition that he a con- did not would be establish tinuing society. threat to The State relied concluded that when criminal conduct. We upon support three factors to the verdict: on the issue of weak evidence State’s offense, gravity the defendant’s dangerousness future was considered attitude, aggravated robbery and an com- defendant, upon by the factors relied primary mitted minutes before the offense. proof met its the State had not burden mitigating The defendant introduced evi- support finding that the defendant would age, showing young dence his the absence continuing society. be a threat to evidence, psychiatric or character (Tex. Wallace days his surrender three after his mother charged Cr.App.1981), the defendant was by police. was contacted murder, and received the death This Court held that the evidence was The evidence showed that sentence. finding support jury’s insufficient to victim, his kill the rather defendant did not continuing that the defendant would be a the actual murder. companion committed First, society. although the crime threat to that he had dis The defendant admitted murder,” at was termed a “senseless id. hire, but de possible cussed murders for stated: we any. In his nied that he had committed offense, standing of this “The facts confession, partici he had he admitted that alone, carry the marks of a ‘calcu- do not attempt to commit pated in a thwarted crime,’ such as lated and cold-blooded the offense for robbery a few weeks before O’Bryan appeared also on trial. The defendant which was 464, 480, for where the defendant military that he had a violation admitted candy poisoning of planned months duty. place of being absent from his to collect life insurance. his own child appeal, the defendant contended On support ‘yes’ answer to the second

To issue, insufficient evidence the evidence must there was punishment spe- response body an affirmative to the second the road near where the was found agreed, cial issue. This Court and stated: which matched the tires on the defendant’s truck. presented “There was no other evidence that could be considered relevant to the testify The defendant did not nor offer Specifi issue of future violent conduct. any punish- evidence in his behalf. At the prior cally, there was no evidence of con trial, stage ment of both the State and the victions, violence, prior no acts of no presentation defendant rested without of evidence, psychiatric no evi character any finding evidence. In that there was Although dence. the circumstances of support jury’s insufficient evidence to support the murder be sufficient to response special to the second affirmative State, penalty, Duffy a death Tex.Cr. issue, we stated: App., this is such a 567 S.W.2d evidence, se, per any “There no opinion that case. We are acts; extraneous criminal there was no support evidence is insufficient to offered; psychiatric evidence finding ‘yes’ on the issue of future vio any prior no evidence of criminal convic- Consequently lent conduct. the death tions nor was character evidence in- penalty must be set aside.” troduced. at

Id. In Brasfield (Tex.Cr.App.1980) (opinion original sub- consideration of the en- After careful mission), guilty the defendant was found factors tire record and the several which in murder murder committed in jury could consider set out [as kidnapping. The evidence course of State, 562 S.W.2d Hovila v. presented guilt stage at the of trial showed ],5 are led to the (Tex.Cr.App.1978) we Turner, Jr., Johnny six-year-old boy, a inescapable conclusion that the evidence later, playing yard, had in his but been an affirma- was insufficient dinner, him for when his mother called issue.” tive to the second answer neighbor found. A testified could not be penalty The death Brasfield, supra at 294. Johnny appellant that he saw a imprison- to life was therefore reformed pick-up the house. A white truck behind ment. also testified that she school bus driver (Tex. Warren v. Johnny appellant pick- in a white saw jury’s af Cr.App.1978), reversed the we they up truck. She watched as drove defendant finding that the would Canyon, firmative the direction of Yellow House continuing society threat constitute a Johnny’s body later found. where stating: the bus Two other witnesses corroborated testimony.

driver’s reflect a of the instant case “The facts violence, it was not a but criminal act acquaintance the defendant testi- An act. The State’s evidence calculated bought and a fellow worker a fied that he shows appellant’s confession the form of beer, six-pack of and drove to a secluded to the de- unarmed went country near a spot on a road which was purpose of bur- for the ceased’s house Canyon. leading into House road Yellow There he found glarizing the house. leaving, they saw the defen- they As were pocket. in his coat placed pistol, which he road, di- coming from the dant down by the in the bedroom surprised He was canyon. The defendant was rection of the deceased, not know. When he did truck, driving whom and was at a alone gun, yelled at him pulled a the deceased speed. Another testi- high rate of him, he shot the to kill and threatened tire marks in the dirt on fied that he found offense; of the commission er at the time [the could consider whether ... 5. “[T]he record; significant an extreme form criminal he was under had and whether defendant] severe; prior criminal conduct was insan- pressure whether his removed from not far emotional old; young or whether he was Hovila, whether he was supra ity." at 249. acting domination of anoth- under duress or the others, psychological rights of appel- The confession reflects deceased. to com- going likely be to continue scared ‘he was to shoot that he would

lant was so pos- aggression, I and his us that I didn’t know what was do- mit future acts of him ing. shooting gun, I similar ... don’t remember a loaded .22 caliber session of only gun.’ Horton, I one had a was the had but to murder to that used story appellant’s that the deceased as stolen. reported been pulled gun supported other evi- of the of find that when the facts We deceased known to dence that the conjunction considered in fense are his .25 carry pistol a and the fact that punishment presented at the the evidence pistol found at his feet when caliber trial, from stage of there was evidence body his was discovered. fact could have a rational trier of Thus, past was no evidence of ap beyond found a reasonable doubt violence, no evidence violence future acts of vio pellant would commit burglary and initially during intended society. continuing a threat to lence and be evidentiary predictions of future vio- no Oklahoma, 455 generally Eddings C.f. v. lence.” (1982). 104, 102 869, 1 71 L.Ed.2d U.S. S.Ct. Id. at 476-77. ground error is Appellant’s eleventh holdings may in these cases be sum- The overruled. way. look at the

marized in this We first judgment The is affirmed. If offense facts of the crime itself. sufficiently cold-blooded was shown be CLINTON, Judge, dissenting. calculated, of the offense or then the facts disposition of the irony Bitter marks support finding a that the defen- alone issue of fu- of error—the eleventh pose continuing dant a threat to socie- will dangerousness. ture If, however, ty. of the case were facts are told at the outset that We sufficiently compelling, for oth- we look age page at 449 years then 17 and finding, was support jury’s er evidence mitigating “possible factors evidence, that there are psychiatric such as character evi- youth state of dence, record, such as the defendant’s or prior prior criminal extrane- mind...,” age appellant is offenses, if of this possible mitigating ous and but anywhere opin- youth given factors such as the defendant’s consideration Eddings v. yet mind at the of the offense. ion I have to find it. See state of time 869, 104, Oklahoma, 102 71 455 U.S. S.Ct. us, In the relied case before State (1982). 1 L.Ed.2d upon following factors to ap opinion and holds special to the second recites affirmative answer pellant testimony of school officials and issue. The facts of the offense show that calculated, and completely probation un- officer as to his “behavior the murder was in school his dis entirely unnecessary. Ap- problems attitude provoked, and [and] kill, right regard and the of others.” pellant for a victim to rob and for rules searched symptomatic of Stephen To those are happened upon the unfortunate the extent car, problems, such Horton, deeper emotional evidence enticed him into the informed damning mitigating,” killed is “at once Stew him that he was about to be before (Tex.Cr. State, money Horton 686 S.W.2d knew how much art v. even (Clinton dissenting, joined by had, App.1984) Horton while he sat inside shot Miller, JJ.). Despite those car, Teague and disposed body, and then drove managed his life with though nothing problems appellant had Antonio as back San Yet, being arrested. none of that out ever happened. carefully considered evaluated offense, to the facts of the In addition be, by merely “com mitigation, it should however, presented at the State Oklahoma, supra. paring” Eddings v. stage establishing punishment of trial facts, ratio- Finally, the inferences and problems attitude appellant’s behavior and opinion to demon- school, relied on disregard his for rules and the nale up strate that appellant State, the moment 654 S.W.2d 450 (Tex.Cr.App.1983); grabbed gun Stanley from and threat- State, Wygal (Tex.Cr. Stephen Horton, deceased, ened App.1977). Tom Sauls was not an as matter of summary, the term “accomplice” in- law or fact appel- would also serve to make cludes all participes Thus, criminis. similarly lant blameless. From some miti- term “accomplice” always given should be gating elements mentioned in decisions dis- meaning. broad Holladay v. opinion cussed in the it seems to me that S.W.2d 194 course, Of one who has never before been arrested is a member of a conspiracy to commit a act, entitled to have his first criminal albeit wrong criminal is an provided deliberate, “senseless” and examined in conspiracy that the pri- has not terminated light of mitigating favorable circumstances or to the object commission of the crime. apparent extemporaneity of his con- Singletary Taking duct. approach an unconstitutional (Tex.Cr.App.1974). V.T.C.A., Under Penal page 449, at the Court does not do that. Code, 7.02(b), “If, Section attempt I dissent. carry out a conspiracy to commit one felo- ny, felony another by is committed one of TEAGUE, Judge, dissenting. conspirators, the conspirators all are guilty majority opinion erroneously felony actually committed, Because the though having holds that Tom it, Sauls was not an accom- no intent to if commit the offense plice witness as a matter of and fur- law was committed in furtherance of the un- ther erroneously rejects complaints the purpose of lawful and one that should Kunkle, Troy hereinafter referred to as the anticipated have been as a result of the appellant, that jury charge, relate to the I carrying conspiracy.” out of the If all of compelled am to dissent. the facts and circumstances case reflect or person indicate that a who testi- It is “accomplice” now axiomatic that an fies for prosecution the could have been usually who, defined person as a as a charged committing the party, was connected with the offense for crime for trial, which the accused is on then that which the accused is on trial. His connec is, law, person as a matter of an may by tion be unlawful act or omission witness, i.e., when, evidence, from all of the part. on his complicity may His be shown circumstantial, both direct and viewed from by acts of commission or omission tran standpoint person’s whether spiring before, of, either at the time or complicity in the crime has been estab- offense, after the commission of the and he lished, there exists no as to the doubt char- need not actually present be shown to be accomplice, acter of a witness as an participant an actual in the crime that was trial duty court is under a to so instruct the ultimately 38.14, committed. See Article and the failure to do so constitute V.A.C.C.P., note 2. reversible error. Burns v. person If a connected with the crime charged prosecution testifies for By Legislature’s virtue of the enactment accused, testimony his is con- V.T.C.A., Code, 7.01, Penal all Section untrustworthy corrupt sidered to be so and participes “par- are now called criminis that a solely conviction cannot be based ties” to the offense. upon testimony. Legis- that witness’s age-old lature has principle written this instance, notwithstanding In this the fact Procedure., law into our Code of Criminal Sauls, Tommy person who testified 38.14, supra. See Art. for the was connected with crimes City Corpus in per It is also axiomatic that were committed whether a accomplice may day question by gang son is an Christi on the in be established with, majority opinion either direct or circumstantial evidence five and, generally speaking, erroneously such must be de and holds that he is finds cided on an ad hoc basis. See Freeman v. an as a matter of law to witness thereafter, crimes, Stanley and another particular, Soon any of those five, gang of other than member of the ap- murder for crime of appellant, robbed individu- or the Sauls partly tried and convicted pellant was telephone in a al, using then who was fact, testimony. of Sauls’ the basis store. The at a convenience phone booth opinion, erroneously, even finds majority grand total $7.00 robbers obtained not even an ac- and holds that Sauls was time, At that Sauls was from their victim. complice question as a of fact. happened. nearby what had and observed Sauls, The facts of this cause reflect that participate Although actually did not Sauls year- admissions a 17 who his own very much con- robbery, he became freak,” acid, four “speed, pot old money much was obtained cerned over how Jerry persons, other one of whom was Rus- noted, victim, which, as was $7.00. from the Stanley, getting high after on L.S.D.1 sell Thereafter, gang discussed of five alcohol, pistol, en- and armed with a Concerning finding victim to rob. another agreement pleasure into an to take a tered proposed robbery, second Sauls himself trip compact automobile a small Datsun testified: Corpus the sands of Christi order “to driving around. We were “We went time, unem- party.” At the Sauls was somebody else to rob. We looking for ployed penniless. One can infer from looking something else to were [sic] others, finan- the record that the at least emphasis.) get money.” (My some rob to cially, shape. in no were better vic- conspirators The soon found another five, Stanley, gang only the not one of This was not as fortunate as tim. victim displayed pistol the several exhibited victim, as this indi- conspirator’s the first presence, actually times in Sauls’ he fired it mur- only but also vidual was robbed exclaiming presence, in Sauls’ with Sauls the dered. Taken from this victim was Stanley that should not do that because grand sum of $13.00. guns “Acid and don’t mix.” Sauls was occurred, robbery-murder the When gang of five had put

thus on notice that the sitting then in the backseat Sauls was deadly weapon. access to a gang compact vehicle the the small Datsun occupying. testified of five was then Sauls Corpus, conspira- to all of the Enroute struggling with that the victim was when ingested tors consumed and more alcohol by co-conspirators, and shot the one of his and acid. to what was appellant, he was oblivious group’s original objective going in to The car, of the happening then in the front seat changed the Corpus party” “to soon to place. the murder took where I finding someone to find objective of rob. In Stanley testified for the State. also time, moment in com- that at that what stated, Stanley I addition to what have conspiracy to the non- menced as a commit he one of the two himself testified that was partying Corpus in be- criminal offense robbery the first persons who committed conspiracy to the crime of came a commit and, the sec- the murdered before robbery Corpus. in victim, pistol to the he held the loaded ond point gang that after the pause I out but, he was person, head of that because Corpus, Stanley, in a mem- arrived of five trigger weak-kneed, pull the he could not immediately at- gang, almost ber of the appellant to causing the pistol, on the thus automo- burglarize someone’s tempted Stanley also and kill the victim. intervene Although using pistol. partic- the Sauls by encouraged to bile testified that he was he attempted burgla- robbery participate the second because ipate did not Thus, agreed part he was had to be ry, he to observe it. that Sauls was able believed person agreement to rob that gang’s that member of the again put on notice once encouraged participate also pistol. and was gang had access to mide, only by usually referred to which is also a shorthand rendition of 1. The word "acid” is diethyla- lysergic the initials L.S.D. term acid the more technical 452

the second robbery because he knowledge may believed be inferred from the cir that going Sauls was a to be lookout for cumstances. See United States v. Galli gang shaw, (2nd order to warn them 428 F.2d Cir.1970). police event that approached gang’s Once the existence of a conspiracy has they vehicle when committing established, were only “slight sec- been evidence” is robbery. ond Sauls himself testified necessary that if verdict that an police car approached gang’s had individual was a conspiracy. member vehicle he Weber, (3rd would have warned the others. United States v. 437 F.2d 327 victim, Unfortunately Cir.1970). for the second police appeared on the never scene when The conspiracy usually existence of a the second that turned into a mur- proved in ways: one or more of three by der occurred. evidence, circumstantial by testimony

Sauls testified that coconspirator what he had wit- of a who has turned State’s evidence, nessed “shocked” him. byor evidence of the out-of-court coconspirator declarations or acts of a or of gang Corpus soon fled from back to gist the defendant himself. The San Antonio. conspiracy agreement, is the and most con- Notwithstanding Sauls was spiracy convictions rest on inferences from witnessed, “shocked” what he had Thus, circumstantial evidence. conspir- gang. nevertheless remained acy may be established circumstantial fact, accompanied gang Sauls next evidence. Rice v. Tex.Cr.R. day pleasure trip gang on another (1932). Also see 72 Harvard took, Canyon this time to Lake where the Law Review 920. gang spent proceeds members of the However, guilty a defendant not be came robbery. from the last Sauls was a co-conspirator “by as a reason of mere beneficiary purchased, of what was some States, association.” United 370 Nassif v. alcohol, more acid and and the record clear- 147, (8th Cir.1966). F.2d 153 ly reflects that he money knew that the purchases instance, that was used to make the jury came this the not in- was from robbery. the second governing conspiracy, structed on the law might or on the fact that a Sauls have been later, police Several weeks when the coconspirator, conspirator or that a can be Sauls, zeroing were in on who had moved accomplice. an Austin, from responded San Antonio to he him, close, police’s attempts to the Although given to contact the facts and cir- gave case, an exculpatory them statement con- cumstances this I would find that a cerning his involvement the murder. rational trier of find fact could that Sauls charges agreement The record reflects that no were entered into an with the other Sauls, ever filed gang and Sauls denied of the of five to commit the members any police robbery that he had made deals the second the of the and that murder prosecution exchange or the for his testi- second victim was a foreseeable result of State, mony against appellant. agreement Thompson to rob. v. 275, (Tex.Cr.App.1974); 276 Conspiracy usually is defined as an 7.01, supra. Section agreement persons or more to between two State, object achieve an In Fantroy unlawful or to achieve v. 474 S.W.2d 490 Thus, Court, object by (Tex.Cr.App.1972), discussing lawful unlawful means. this decisions, conspiracy complete past pointed the offense of is several its out agreement soon as the criminal is entered that the mere fact that one was seen with State, 240, hijackers, though into. Dill v. 35 Tex.Cr. 33 not S.W. actual even he did State, (Tex.Cr.App.1895); actually participate in the hijacking, Witt was (Tex.Cr.App. person’s Tex.Cr.R. 177 S.W.2d 781 sufficient to that convic- 1944). agree object In order to principal to an of a tion as a to the commission of the conspiracy, conspirator pointed fleeing must have crime. It also out was that knowledge objective, of that but such from the scene of the crime with the actual prin- conspired with the others to rob gunman sufficient to make one a Sauls deceased_” was emphasis.) (My The then stated: cipal to the crime. Court case, present testimony “In the I I dem- contrary, as believe have To they co-defendants that appellant and show onstrated, is of evi- an abundance Appellant other in knew each California. only this fact. One need dence to establish present Wright in the merely was testimony and the testi- look at Sauls’ own together, They store. ran out the store evidence, Stanley, supra. This mony of together in an automobile fled the scene alone, standing would have been sufficient together. arrested The sack con- jury and were to find that Sauls en- permit taining money agreement amount of taken in with the others to the same tered into an robbery, if not also the robbery appellant’s print. commit the second bore thumb however, robbery. jury, The was not first sufficient We hold that evidence was law, phase this but was instructed on jury conclude was for the that pursuant provisions only instructed participant principal and a in the rob- 7.02(a)(2). appellant’s The com- Section (492). bery.” plaints going jury charge go to his proceeds robbery, recipient A from a assertion that should have been present was when the was who though it instructed that even found executed, planned and and fled with the did not do affirmative act Sauls hijackers, actual has been held this robbery, never- commission of the second an as a Court to be theless, if it also found that Sauls was Colunga matter of law. See 481 coconspirator robbery, they then wit- could find that com- observed, ness to the murder easily supra, As the incrim see mitted, necessitating therefore that Sauls’ inating direct and circumstantial facts testimony a convic- be corroborated before impressive far this cause are more than upon his testi- tion could be obtained based in Fantroy, supra, those adduced or Co- Code, V.T.C.A., mony. Penal Section See lunga, supra. compare Also see and however, 7.02(b). giv- jury, was never (Tex.Cr. Drakes v. option. en I hold that the trial this would App.1974). yet, majority opinion And refusing court erred in to so instruct the holds that the circumstantial this omis- jury, and would further hold that presented in this cause insufficient appellant. sion harmed the to make Sauls an as a reasons, foregoing I For the above and disagree. I matter of law. respectfully dissent. the facts and circumstances of this Given cause, nicely I find that Sauls fits within following long established rule of this persons acting

Court: “Where several are act,

together pursuit of an unlawful each crimes, one is for collateral even liable GUERRA, Aldape Appellant, Ricardo unplanned unintended and com- though principals, other if those crimes mitted Texas, Appellee. The STATE of foreseeable, ordinary probable are the No. 69081. consequences preparation or execu- (Citations act. omit- tion of the unlawful Texas, Appeals Court Criminal ted.)” Thompson v. En Banc. 4,May Assuming arguendo that Sauls was 3, 1989. July Certiorari Denied a matter of law accomplice witness as See 109 S.Ct. 3260. majority opin- parties, the law of under holding that “there ion is still erroneous raising possibility

was no evidence

Case Details

Case Name: Kunkle v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 18, 1986

Citation: 771 S.W.2d 435

Docket Number: 69501

Court Abbreviation: Tex. Crim. App.