Planter v. State

statements rights violated his under the PLANTER, Appellant,

Confrontation Clause. William Edward recently Dewberry We held in (Tex.Crim.App.1999), S.W.3d 735 that the The STATE of Texas.

statement against penal exception interest hearsay to the rule firmly is a rooted No. 1426-98. exception to the Confrontation Clause. Texas, Court of Criminal Relying holding, on this majority holds En Banc. that those by appellant’s statements made co-defendant, which were both the 15, Dec. interest, co-defendant’s appellant’s did and, not violate the Confrontation Clause of the

Sixth Amendment. See ante at 748-19.

While I agree with the result reached on issue, three-step I would adhere to the

analysis Dewberry. articulated in

First, we must consider whether an una-

vailability analysis is necessary under Illinois,

White v. 502 U.S. S.Ct. (1992). 116 L.Ed.2d 848 In in- ease,

stant unavailability analysis

unnecessary challenged because the state-

ment was prior not made the course of a

judicial proceeding. Dewberry, Second,

752-53. pos- the statements must reliability,

sess factors of meaning they spontaneous

must be and must tend to be

true. See id. at Finally, 752-53. firmly excep-

statements must be rooted

tions to the hearsay Dewberry, rule.

we held that the against penal statement firmly

interest exception rooted hearsay rule. Id. at 75-54.

I agree majority with the that the other co-defendant,

statements made implicated appellant

which only, are not Therefore,

exceptions hearsay rule.

they analyzed are not in the preceding

manner, they cannot firmly rooted

exceptions to the Confrontation Clause. comments,

With these I concur in the

judgment by majority. reached murder, seriously Rosen, Wice, capital solicitation of has Brian W. Hous-

Steven R. law in conflict with misconstrued state ton, appellant. for applicable of the Court Crimi decisions Houston, Atty., Asst. Curry, Alan Dist. nal Appeals.” Paul, Austin, for Atty., Matthew State’s appellant, a for- shows that The record State. officer, Baquer Lex peace mer contacted information con- that he had stated Baquer’s daughter. cerning the murder of consulting department, After the sheriffs OPINION Baquer appellant with on two occa- met JOHNSON, J., delivered the sions, wearing time each transmitter Court, MEYERS, in which department. Ap- provided by sheriffs PRICE, MANSFIELD, HOLLAND and Fratta, pellant Baquer that Bob told JJ„ KEASLER, joined. daughter, Baquer’s husband of estranged Baquer’s two men to kill had hired hit Planter, Appellant, was William Edward meetings daughter. tapes The from the capital convicted of solicitation of Baquer that appellant and show between punishment his assessed at sev appellant kill if offered to years confinement. The Court of enteen $10,000. pay appellant would Appeals affirmed the conviction. Planter State, (Tex.App 976 S.W.2d complained, inter appeal, appellant On . —East 1998). granted appellant’s alia, land peti We legally that the evidence was discretionary ground support tion for review on the factually to his convic- insufficient that Appeals, holding complaint “[t]he Court tion. focused on the indict- His jury charge,2 evidence sufficient to both of which ment1 read, appellant’s part, conviction “re- appellant for offense relevant read, be, capital or 1. The indictment in its would murder constitute entirety, party as follows: the other a to its commission. make person A commits the offense of murder William ... on or Edward Planter about intentionally knowingly he or causes if 22, 1994, December then and there did an death of individual. capital unlawfully felony with intent capital person A commits offense of committed, namely Capital Murder ... employs if he another to commit murder commanded and to in- prom- murder for remuneration or the specific engage duce Lex duct, to con- Fratt[a], ise of remuneration. namely, to kill Bob and that intentionally, person in- A acts or with surrounding under the circumstances Lex tent, respect with to the nature of his con- Baquer’s as conduct the Defendant believed objective or duct when is his conscious Capital them to would constitute Mur- engage to in the conduct. desire der or Lex make to its person knowingly, knowl- A acts or with commission. respect con- edge, with to the nature of his added.) surrounding his duct or circumstances trial, 2. At submitted when he aware of the nature conduct is read, entirety, in its as follows: or exist. his conduct circumstances defendant, Planter, who persons Edward are offense William All an charged by acting together with stands indictment the of are in the commis- criminally capital person fense of A solicitation commit mur sion offense. der, alleged responsible to an if the to have been committed on or offense n<i conduct, December, 1994, day by about the 22 offense is committed his own County, another which he is Harris Texas ... the conduct of for person criminally responsible, A or commits the offense solicita- both. if, responsible capital person criminally tion to murder in- commit with A committed, anoth- tent that a murder be he committed the conduct of commands, if, acting promote requests, attempts or assist or er with intent solicits, that, offense, engage specific another conduct the commission of the directs, aids, encourages, attempts to aid his the circumstances person the offense. conduct the defendant believes them to the other to commit quested, commanded and to in- 958 S.W.2d 952 (Tex.App . —Beau duce Lex Baquer engage mont pet.), no the court found that conduct, namely, to kill Bob Fratt[a].” the hypothetically-correct jury charge for the case applied would have the law of The Court Appeals nothing found that Planter, to the facts. in the record showed had Therefore, at 867-868. it held that the requested or attempted to induce Baquer in evidence the case legally was and factu “to kill” Id. However, Fratta. at 867. ally sufficient appellant to show that was found that there was evidence showing guilty party to the offense of solicita that appellant had requested capital tion of Id. murder. 868. to Baquer induce pay appellant to kill and, therefore, party be a the reasoning of Appeals the Court of Id. The court noted that killing of Fratta. scrutiny. withstand Neither the jury charge included an abstract in Blanco nor Nesbitt supports the of struction on parties, the law of but Appeals’ did not holding. cases, In both of these apply the law of to the facts of the the issue was whether the convictions were case and did not refer to authorized, the law of given the in “deficiencies” the in Id. application the paragraph. jury Howev charge as to the law parties.3 of er, based on our decisions Malik v. Nothing in the records indicate that in the State, 953 S.W.2d 234 (Tex.Crim.App. proof at comport did not with the 1997), and Blanco v. 962 S.W.2d 46 conduct alleged in respective the indict- (Tex.Crim.App.1998), as well as a court of ments and in respective set out the jury appeals decision relying on Nesbitt charges.4 presence Mere alone will not constitute one light remanded for reconsideration in of Ma- a to an offense. lik. Id. at 47. Now, you if find from the evidence be Nesbitt, In the defendant was convicted of yond a reasonable doubt in Harris Nesbitt, 958 S.W.2d at 953. nd Like Texas, County, on or the 22 day De Blanco, the defendant complained in he cember, 1994, defendant, the William Ed the legally evidence was sup- insufficient to Planter, ward did then and there unlawfully, port the conviction application because the with ted, capital felony intent that a be commit paragraph jury charge murder, the did not include namely capital the defendant language incorporating the commanded abstract definition to in Therefore, parties. duce Lex of the law engage specific Id. in at 954. con duct, Fratta, namely, argued to kill jury Bob and that that the was authorized to under the circumstances only Lex convict the if evidence established that Baquer’s conduct as the defendant believed personally the defendant had committed an them to would constitute murder clearly dangerous act to human life and that or make Lex to its commis personally the defendant caused serious bodi- sion, you then will find the defendant ly injury to the victim. Id. The Court of charged as in the indictment. Appeals found that there was evidence that you Unless so find from the evidence be- instigated the defendant had actively par- yond a you reasonable doubt or if have a ticipated in a series of express assaults for the you reasonable doubt acquit thereof will the purpose extorting property or services from say by your defendant and verdict “Not victim, the beatings and that the inflicted Guilty.” upon the victim were so severe as to be clear- added.) ly dangerous to human life. Id. at 955. Therefore, Blanco, it found that the evidence In was suf- the defendant was convicted of Blanco, finding by jury ficient to defendant, burglary that the of a habitation. submission, acting original party, at 46. On alone or as a commit- the court of appeals ted each beyond found the element of the offense evidence insufficient be- doubt, application paragraph cause the reasonable charge even in the absence of evi- jury did parties. not refer to the law dence that the personally defendant executed Therefore, Id. the court found that the suffi- fatal blow. Id. evidence, ciency of the when measured application paragraph, necessary Because it is specifically entitled not acquittal allege defendant to an appeal in be- an indictment that an accused is guilty only cause he party. being charged as Id. We party, aas there dis- was no therefore, cannot, sup- jury verdict issue contrast, precise jury actual by either the ported logically case; at trial instant does hypothetically-correct or the alleged the conduct comport with by the Court was formulated charge that jury charge? and set out

indictment Appeals.6 case, in the instant set out indictment and judgment foregoing, Based on “requested, charge, was reversed, and the the Court Lex attempted to induce commanded for the the trial court cause is remanded to conduct, engage acquittal. entry judgment of a The evi- namely, Fratt[a].” to kill Bob at- not show dence does McCORMICK, P.J., dissenting filed a attempt command or tempted request, KELLER, J., dissenting filed a Instead, kill Fratta. Bacquer to to induce WOMACK, J., dissenting filed a opinion. attempted to re- appellant that it shows opinion. attempt induce Bac- command or quest, P.J., McCORMICK, a delivered The to kill Fratta. pay appellant quer dissenting by the state introduced at evidence from the of- proved an offense different The Court’s set out in the indictment and alleged fense a matter of federal provides, as opinion and is therefore insuffi- jury charge in the law, form greatest the constitutional guilty, that is as cient to show ap this appellate acquittal relief—-an —to party, primary the actor or as either charged of the clearly guilty pellant who by Appel- alleged the conduct the state5. of solicitation crime with or indicted for charged lant was never require does not constitution The federal appears the evidence the offense it. See expressly prohibits this and Malik soliciting (Tex. Bac- support: capital by murder 234, 239 Malik v. (federal appellant to kill Fratta. quer to hire evi- constitutional Cr.App.1997) not com- intended to presented sufficiency at trial does review not dentiary evidence defendants acquittals in the indict- port provide appellate with the conduct charged). the crime charge, are jury ment and set out who the State's burden necessarily increase whether the convic- pute in those cases as to unnecessarily the State's restrict by were authorized the indictments. tions adequately de- liability, and theories particular offense for which scribes Judge ellipses to al- Womack’s dissent uses was tried. defendant sentence, significantly import of this ter added.) primary or.” omitting "as either the actor Judge with the omission combination In J., Post, (Womack, dissenting). at 162-63 dissent, results in the state this Womack's being Judge dissent ar- Presiding McCormick’s ignore indictment as the able to "clearly requires that eviden- gues Malik allegations which must be basis for Malik, sufficiency tiary is to be measured contrary which proved. This is offense,” jury but then omits elements of the hypothetically correct states standard, "and set out ignores sufficiency of the the rest charge to measure used Post, (McCor- charge.” by at 160-61 the indict- jury authorized is to be evidence mick, P.J., dissenting). That omission results ment. Id. contrary plain argument to the that runs in an Malik, argues that the indict- language Judge S.W.2d at which dissent Keller’s theory authorized conviction states that ment one that Planter sufficiency should mea- than the evidence other Baquer to by of the offense commanded or the elements sured Post, by killing him. jury death by hypothetically correct cause Fratta’s defined charge However, J., (Keller, dissenting). this charge would' Such a the case. plain contrary lan- interpretation runs accurately sets out be one that supra note 1. indictment, guage the indictment. un- authorized In this case the alleged ap- “hypothetically indictment believe that Malik’s cor- pellant induced kill rect language,1 Fratta. for the case” jury charge which allegation. immediately tracked this follows and defines the was, however, “sufficiency of the evidence should be mea- There a variance between sured lan- the elements of the offense” allegation prose- the indictment’s and the Malik, guage application has some cution’s trial evidence because this evi- cases like this. “hypothetically Malik’s proved actually dence himself of- jury charge correct for the case” language, one, fered to kill Fratta which no not even however, application has no like cases opinion, the Court’s claims does not consti- this. charged tute the crime of solicitation of

capital murder. “hypothetically Malik contains this cor- jury charge rect for the case” language deciding guilty-of-the-crime- because the error in Malik in- charged appellant is an appel- entitled to jury charge prior volved error2 which our acquittal, opinion late the Court’s mea- erroneous case law that Malik overruled evidentiary sufficiency sures against ev- treated like element of the offense that except erything requires what Malik prosecution had to obtain evidentiary sufficiency be measured conviction. See 953 S.W.2d at 236- against. The Court’s does this “hypothetically 39.3 Malik’s correct measuring evidentiary sufficiency against for the charge language” simply case elimi- indictment, the jury charge the actual and jury nates consideration of these kinds of a “hypothetically jury correct in- charge” charge part errors as an evidentiary corporating theory. Planter v. sufficiency review. State, 156, 9 (Tex.Cr.App., S.W.3d 159 de- date) (“[bjecause require appellate Malik does not consid- livered this the evidence “hypothetically jury eration of a correct presented comport at trial does not with charge for the case” the in- indictment, unless case allegations the in the and be- volves a jury charge error like the one jury supported cause the verdict cannot be And, then, Malik. even Malik still makes logically by jury either the actual charge offense,” the “elements of the and not a hypothetically or the jury charge correct “hypothetically jury charge,” correct Appeals, formulated the Court evidentiary sufficiency. measure of See Court of erred in its assessment Malik, 953 S.W.2d 240. The issue is evidence”). sufficiency of the of the simply whether the evidence sufficient is simple, Malik’s “one coherent [evidentia- offense.” “elements standard,” however, ry sufficiency] clearly See id. requires that evidentiary sufficiency be deciding appellant entitled is to the against measured the “elements of the of- remedy appellate acquittal, of an footnote Malik, fense.” at 240. See 953 S.W.2d opinion five of the Court’s relies foot- standard, When measured this which recognizes note three Malik than evidence is more sufficient to general “[a]ppellate rule that affirmance of appellant guilty charged crime of a conviction on the basis of a nei- solicitation of (sic) ther the indictment not opin- well as the presented constitutionally Court’s Planter, ion of Appeals apparently prohibited.” the Court of See 9 S.W.3d at 159 Malik, jury charge 1. See 953 S.W.2d at 240. 3.This case does not involve error. Malik, See 953 S.W.2d at 240. (involving 2. See 953 S.W.2d at 235-36 requiring jury erroneous instruction acquit upon finding that certain evidence was obtained). illegally

161 5; Malik, fn at 238 Malik. See State Guz- fn. 3. sufficient under however, man, fails opinion, (Tex.Cr.App.1998) to mention Court’s 959 631 S.W.2d goes say Malik (when footnote three of on to we federal constitutional apply “rule does not bar retrial of this Supreme we are States bound United id. criminal defendant.” See The Court’s it). law interpreting Court pro- on footnote three of Malik to reliance No federal constitutional law principle of remedy appellate an acquittal vide the provide appel- requires appellate courts to this guilty-of-the-crime-charged defendants, like acquittals ap- this late clearly misplaced. might This the crime pellant, guilty who are remedy be entitled to the for remand therefore, that charged. Deciding, ap- trial because of the variance new be- appellate acquittal pellant is entitled to allegations tween the indictment’s deciding that state courts is tantamount to trial, proof at but he is not entitled to the controlling United do not have to follow appellate ac- greatest form of relief—an Supreme precedents. States This quittal. 1861 position litigated between in this case a vari The error involves rejected. 1865 and ance the indictment’s allegations between prosecu at trial and not prove appellant tion’s failure KELLER, J., dissenting delivered a This, however, charged. is trial crime implicate error which the suffi ciency support appel of the evidence to (Tex. In Malik v. 953 S.W.2d 234 lant’s conviction. generally Burks Crim.App.1997), sufficiency held that we States, United U.S. S.Ct. “by be measured evidence would (1978) (discussing L.Ed.2d 1 be difference elements of the offense as defined tween requiring remedy trial error of re hypothetically jury charge correct mand legal insufficiency for new trial and explained: Id. further case.” at We requiring appellate the evidence ac a would be one accu- Such quittal). recently And this Court also rec rately by is authorized sets out ognized abrogated that Malik to the “close indictment, unnecessarily sufficiency evidentiary bizarre” rule in var increase burden of or the State’s iance cases like Hicks State.4 See Ro unnecessarily restrict the State’s theo- State, 228, (Tex.Cr. sales v. 236 liability, adequately ries of and describes (Womack, App.1999), 4 at and S.W.3d 236 particular for which the de- J., 4 concurring), fn. S.W.3d 236-36 fendant tried. J., 2 (Meyers, concurring in the judgment) question presented Id. The is whether the (recognizing that cases like Hicks are vari evidence of a record contains sufficient cases). ance theory by crime that is “authorized Malik, Finally, with its reliance on The indictment indictment.” Court’s decides is enti- read case as follows: appellate acquittal tled to an a matter ... Edward Planter or William law. federal constitutional Malik is a fed- 22, 1994, did then about December decision, eral so could not constitutional it a capi- intent that unlawfully there with adopt evidentiary a different standard committed, namely felony Capital tal be sufficiency review than the out one set Murder ... commanded and 307, Virginia, 443 U.S. 99 Jackson v. S.Ct. (1979). Lex en- to induce to 61 L.Ed.2d 560 This means conduct, kill namely, gage is legally if the evidence sufficient Fratt[a], under Virginia, then be Bob and that the cir- Jackson v. it must State, (Tex.Cr. App.1993). S.W.2d Hicks v. manded, cumstances Lex Baquer’s conduct as the by Defendant believed them becoming party cause Fratta’s death Capital would constitute Murder killing. question to Fratta’s There is no or make Lex com- its that the evidence in this case is sufficient mission. a conviction under the second theory. I affirm. would added). parties The law of need not contained be in the indictment. 953 S.W.2d at may

234. The result is that a defendant WOMACK, J., dissenting opinion. filed a be a party though convicted as even literal reading indictment would re- mystifies The Court’s me. decision quire showing that the defendant com- recognize holding Court seems to mitted the -primary crime as the actor. (Tex.Cr. Malik v. 953 S.W.2d 234 For example, a murder indictment reading App.1997), legal sufficiency that the of evi “Planter did then kill and there Fratta” dence is judged charge the would authorize if conviction even the evi- given. court should have ante at 159 See personally dence did not show that Planter agree proposi n. 5. It seems to with the killed Fratta but showed instead that may charge tion that the trial court on the kill encouraged Planter someone else to parties alleged law of when it is not in the (and person that other did in fact indictment. ante at 158-59. Fratta). law, then, By kill an indictment apply Then fails to either of those parties authorizes conviction on the law of rules. Forgetting liability though even the indictment’s indi- wording alleged does not have to be in the indict- personally cates the defendant com- ment, it says, “Therefore the evidence is mitted the criminal acts See Tex- alleged. insufficient to show that is guilty 7.01(c). § as Penal Code party, alleged ... as a of the conduct in the But present case does not involve indictment, the state failed application of the law of the offense as the indictment.” Instead, question defendant. the crucial And, Ante at 159. forgetting the suffi- sufficiency purposes is whether the law ciency of the evidence is not measured applied can person to a third it mea- charge; what is set out indictment, Bacquer. named i.e. Lex hypothetically charge, sured correct personally killing Because would says “the failed to the Court state actor, Baquer primary phrase make jury charge.” the offense ... set out “or make Lex to its com- Ibid. mission,” deprived any would be of mean- parties the law of in fact I rule that of ing unless were am doubtful of the the law applied (anticipated) any allegation to Bacquer’s conduct. is available without interpretation, Under this the indictment the indictment of conduct would (This party. authorized a conviction on at least two make one a case reveals (1) rule.) requested, shortcomings theories: that Planter com- But unless the manded, ignoring overruling or to Court is this rule or by personally killing say cause Fratta’s death I cannot understand how can (2) him, legally and that Planter com- that this evidence is insufficient to that, including language, engage 1. the in- conduct under language dictment tracked the of the solicita- circumstances his conduct as statute: tion the actor believes them to would consti- if, person A commits an with intent felony tute the or make the other felony felony that a of the first or its commission. committed, degree requests, com- § Texas Penal Code 15.03. mands, attempts to induce another for resolu County trial court party. the Harris appellant’s guilt show 11.07 Article pursuant to of this issue tion 3(d) of Procedure. the Code Criminal § (Tex. Carrio, 992 S.W.2d Ex Parte Crim.App.1999). findings has court entered

The trial upon based fact and conclusions parte Ex Norman Edward Appli- due to response, stating that State’s CARRIO, Applicant. year delay filing fourteen cant’s ability to application, the instant State’s Nos. prejudiced. been respond has of Texas. of Criminal relief be denied court recommends laches. Id. the doctrine

Dec. record with has reviewed the This Court 9, 2000. Rehearing Denied Feb. by Appli- allegations made respect to findings upon trial court’s cant. Based review, sought relief and our own denied. Carrio, pro Edward se. Norman JOHNSON, J. concurred the result. Hardaway, Atty., Hous-

Lynn Asst. Dist. Austin, MEYERS, J., Paul, without written ton, dissented Atty., Matthew State’s for State.

OPINION

PRICE, J., delivered the McCORMICK, P.J.,

Court which MANSFIELD, HOLLAND, KELLER, ENTERPRISES, HEALTH TEXAS KEASLER, J.J., joined. WOMACK INC., Kern And Hea Manor d/b/a Applicant was of the offenses convicted Inc., Appellants, Management Group, Pun murder and v. sixty years ishment assessed Individually GEISLER, R. Walter years, respectively, in the Texas twenty Legal Representative the estate Justice, Department of Criminal Institu Simmons, Appellee. of Ruth convictions Applicant’s tional Division. appeal. Geisler, Individually Carrio were affirmed direct and as R. Walter representative Nos. and 14-83-335-CR legal 14-8B-834-CR the Estate ( Dist.], Simmons, Tex.App. Appellant, deliv [1st Ruth — Houston 'd). 12,1984, pets, July ered ref contends, present application, he Inc., Enterprises, Health Texas d/b/a convictions should be set aside that his Management Manor and Hea Kern of coun- he received ineffective assistance Inc., Group, Appellees. numerous Specifically, sel. has raised No. 2-98-026-CV. regarding contentions counsel’s Texas, witnesses, investigate, failure to interview Fort Worth. for trial. prepare June submission, made initial Upon State appli- Applicant’s argument general on the doc- cation should denied based the cause laches. We remanded

trine of

Case Details

Case Name: Planter v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Dec 15, 1999

Citation: 9 S.W.3d 156

Docket Number: 1426-98

Court Abbreviation: Tex. Crim. App.