*2 (sic) way process so he could PRESSLER, Before ROBERTSON and money, doing dope dealing.” this Han- ELLIS, JJ. cock further appellant testified that ex- plained that Norman Harris had received OPINION goods (appellant) stolen from him think —“I ROBERTSON, Justice. him”, refrigerator it was a off of stove — (to Appellant and that had him in was convicted criminal solic- Harris “turned police) get itation to commit murder. The and he needs to rid of him.” He punishment years assessed at 35 appellant confine- testified that told him “[I]f Appellant brings grounds Norman, get ment. four can rid of we can make some (1) concerning: sufficiency far, know, error of the evi- good money, running as as accomplice testimony, dence to corroborate grass, dope, marijuana, says, you and he (2) (3) fundamentally jury charge, defective good money, can make some about $500 charge, variance between indictment and clear, trailer, you week and have a nice (4) and defective instruction on extraneous know, all, in”, put your family and and offenses. affirm. We I get caught were to or killed in the “[I]f it, process that he would take care of (1) appellant The relevant evidence is and kids, moneywise.” wife and as far as Con- neighbors, (accomplice) Hancock were Han- Harris, cerning the actual to kill having park moved into a trailer appellant Hancock testified that he and appellant. across the street from Hancock “stripping day were some wire” that and actually came to know “[Wjell, good told him this is a (the victim) through Norman Harris who getting time to do it. close and Court neighbor appel- Hancock and was a of both good get this is a time to it done” and he (2) appel- lant. testified that he told Harris so”; replied “[Wjell, guess I going buy an icebox and lant he was gave him dropped and him off close to $50 anniversary. Appellant stove for his wife’s Harris’ house. He testified that he went to offered to items to for sell these Harris house, Harris’ “said hello to Norman and bought Harris the items but later $150. go his wife and asked Norman if he would suspected items were stolen. Har- out and have a few drinks with me and he ris called Terra Homes because he knew having said sure.” After several drinks thought worked there and getting go beer and wine might refrigerator stove and have been get “try decided to him off to a secluded from Harris then called the stolen there. spot so I told him there was a Department report and made a Sheriff’s river, down near the I told concerning purchased from Channelview. the items he there, him there was a down appellant. Charges against ap- bar were filed there pellant subpoenaed ap- there wasn’t one. So we on down and Harris was said, well, go and I I to the bath- pear on June the 228th District had to room, County stopped so he and we both Court Harris as witness the truck head, ‘Well, I already gave out and I said her 50. it, might to do we’re as well do out, pulled my I now.’ So knife walked Yeah, Hey. hey man. Let’s Finally, around and I cut him.” he testi- get go thing ahead and this damn appellant, fied that he then called who away, gotta get squared man. the— picked up, him came that he informed go fixing I’m to the damn federal *3 that he had “cut him” “he pen. my I if And wanna know damn ain’t He dead.” then related how he was gonna squared away share of this is night, arrested later that that he confessed get I the hell out before of Houston. deputy cooperated to the sheriff and later There ain’t Richardson: no doubt about by making telephone the call to know, I I it. You do what can do. (4) so it could be recorded. Harris testi- you’re going, go- you’re Hancock: Well fied: that Hancock came over to his house ing to come across with more than 50 23rd; p.m. about 5 on June the two gonna cause that ain’t along make it truck, stopped drove around in Harris’ at with them kids and Bonnie. lounges, several had some drinks and then Richardson: I can come across with stopped at the end of a dead end street to got. Iwhat bathroom; go to the that while out of the you Hancock: Well remember what we truck “Hancock walked around the back- “Yeah, you talked and about said side of the truck and come from the togeth- that’d be cool. You had it all backside of the truck and come in from the er.” me, part back where I couldn’t see him Yes, gotta get Richardson: But I direction, slipped in that and around and it, stuff to do don’t I? And it ain’t throat;” cut he “went down to the in. come just there for a minute” but was Well, what, you I Hancock: tell I know get up, able to kicked Hancock and was thing, going one damn that she’s escape help. then able to for loosing After get something. have to hospital consciousness he was taken to the I already— Richardson: surgery performed where- he had on his Hancock: She has to make at least (5) Hancock police throat. confessed to the goddamn 300 dollars a week even to agreed and to assist them in their investi- I gonna survive cause ain’t be able gation. agreed He to call on the get nothing going to her. I’m to be telephone so the conversation could be penitentiary damn state or some taped. recording of the call reflects long. damn for God knows how that when answered the tele- Hey, pulled I the little deal off. O.K.
phone, operator said: “collect from Fine. ifBut this deal ain’t. We ain’t Hancock, willyou pay Appel- for the call?” bugs pulled no on it over here. I responded lant immediately, would and agreement off and we made an on it. following pertinent occurred and the agreement I goddam Now want the parts taped conversation are set out: go through. Cause I’m the one who’s Hello, paying hey. they’re paying for it and now Hancock: for it. it’s something Now all for Hello, Billy. Richardson: gonna I don’t even if know it’s work Hey, yeah. I Hancock: tried to talk to out or not. yesterday. you Billy, only give Richardson: I can I what My tapped. line Richardson: got. Huh? Hancock: Well, they’re Hancock: I need to know My tapped. They got line Richardson: and, bit, taken care of and this little a monitor on line. every every week two weeks you Did take something gonna, O.K. care of gonna, ain’t ain’t pay said? their rent I want them don’t there, junction moving in over not with that shit with TEXAS CODE CRIM.PROC. nuhuh, (the guys, general down with ANN. Article 38.14 statute on place. they’ve accomplice testimony) require to live their own witness no evidence, agreement was. No- That’s what the more than that there must be (un- body anything accomplice said about ... other than the intelligible) “tending connect the defendant with plus circumstances offense committed” I Billy, I can do what Richardson: corroborate got money to do with. (as accomplice) and testified sweating my
Hancock: I’m here ass in earnest. the solicitation was made it, too. off about get Billy, as as I soon question that There can be no money, they get As will Hancock made a com witness get moving. Do soon as stuff plete against appellant. case While the saying? I’m you understand what I’ve *4 corroborating evidence is far from over waiting it. You know that. been following facts whelming, we find from the here. some word tending ap sufficient evidence to connect * might not make it. You heard Norm the offense: pellant to the commission of anything? goods appellant allegedly 1. stolen sold No, I sure haven’t. Richardson: to Harris pushing they been Hancock: That’s reported appellant 2. Harris to the au- He ain’t it. me here. thorities Well, I talked to attor- Richardson: appear Harris had summoned to 3. been night. And he said if the man ney last (to four appellant’s at trial take shape you’d in have a was even critical attempt) days after the murder $10,000. $50,000 instead of a bail 4. Harris and Hancock were friends and Hancock: Yeah. for Han- there was no other reason gonna So he’s cheek into attempt to kill Harris nothing Monday. until he can’t do readily accepted Hancock’s 5. error, appellant ground of In his first collect call overruling the trial court erred contends immediately admonished 6. instructed verdict of not his motion for an telephone was Harris that his required to cor- guilty since “the evidence “tapped” accomplice witness’ roborate appellant continuously assured the 7. corroborate both legally insufficient to was during telephone con- and the the solicitation itself versation that he would care for Han- accomplice act on the solici- intent that the wife and children when there cock’s 15.03(b); by V.A.P. required tation as Sec. obligation apparent no to do so was disagree. C.” We explanation any nor there other was (b) criminal solici of the Subsection willing given why he was was to do statute, ANN. TEX.PENAL CODE tation so § 1974) appel (Vernon under which 15.03 con- portion telephone of the call 8. indicted, person that a provides lant was that cerning and the fact “Norm” on the uncorroborat convicted may not be checked with his attor- appellant had allegedly person solicit testimony of the ed ney regarding bail made solicitation is ed “and unless the finding that We have no difficulty in strongly corroborative under circumstances plus the circumstanc- actor’s above circumstances itself and the the solicitation of both kill attempted to es under which Hancock person act on the the other intent Harris corroborate con- We read this solicitation.” Norman Harris. The victim’s name is * Note: Q: and that why intended Hancock And did believe he was
to act on the Appellant’s solicitation. first serious about that?
ground of error is overruled. A: Because he wanted to make some money running dope out of grounds his second and third put jail, if he would be error, appellant charge contends the money wouldn’t be able to make that jury fundamentally defective be and Norman Harris was the one permitted cause it upon conviction a less testify against that could him in a culpable er alleged mental state than charge theft and he him wanted out indictment or as Section 15.- way process of the so he could mak- 03(a). complained portion ing money, doing dope this deal- intentionally reads: “did or know ing. ingly, capital with intent murder Q: committed ...” Who told that Norman alleged The indictment Harris “with intent was the one that could him committed, request, jail? murder be command to induce DARRELL ETHER- A: Lonnie Richardson. intentionally IDGE HANCOCK to and On cross-examination Hancock testified: knowingly cause the death....” Section Q: leaving You are with the 15.03(a) requires person act “with impression, “I am out just try- here capital felony intent that a felony to feed wife and kids and I degree be committed....” Thus the electrician, joba as an just bare- *5 requires specific intent. The ly getting by”? actually You were charge finding a acting of pushing marijuana, you? weren’t intentionally or knowingly in addition to a A: I wasn’t an electrician. I didn’t have finding that acted with intent joba an as electrician. that murder be committed. The Q: you pick Whatever could “intentionally knowingly” phrase was push marijuana on the side? element; submitted as an additional did, A: For what little proof yes. state’s burden of bit That was not reduced. State, Johnson v. feeding was (Tex. and to the 650 S.W.2d 789 house. Crim.App.1983). The second and third grounds of error are overruled. On re-cross Hancock testified: Q: response In question, to counsel’s error, In his ground fourth ap pushing marijuana, your what was pellant complains of the trial court submit dealing any involvement that ting, objection, limiting over a instruction marijuana? regarding testimony about an extraneous somebody A: To find that wanted to offense because there was no evidence that buy wrapped it. He eight- support jury’s finding could a appel that bags. ounce lant committed such extraneous offense. Q: Who’s he? case, present In apparently the trial A: Lonnie. questioned charge court submitted the on theory Q: that the state was entitled to you pushing So while were marijua- prove na, the extraneous offense in man, order to pushing were it for this appellant hiring establish a motive for Han the Defendant Lonnie Richardson? examination, cock to kill Harris. On direct Yes, A: sir. Hancock testified as follows: jury charge The content of the must be Q: Do believe that Mr. Richardson supported in the evidence. Booker v. wanting was serious about to kill State, (Tex.Crim.App. 523 S.W.2d 415 Mr. Norman Harris? 1975). As shown above there is evidence Yes, A: sir. marijuana. sold The 688 (if person act on the testimony intent the other to consider
instructed solicitation. they relating offenses any) to other beyond a reasonable doubt believed 15.03(b) is anal It obvious that Section is ap by the offenses were committed such art. 38.- ogous to Tex.Code Crim.Proc.Ann. purpose then for the pellant and even (Vernon 1974) requires that 14 see establishing appellant’s motive. We tes accomplice witness conviction based limiting instruction of the no error corroborating evi timony must contain charge. ground of error is overruled. This independent source an dence from to the crime. a defendant tends to connect affirmed. judgment
The State, (Tex. Saunders general Crim.App.1978). This statute is Justice, ELLIS, dissenting. applies to all such situations statute that disagreement with the Finding myself § 15.03(b) specifically to limited while court, I like to other members of In involving criminal solicitation. matters dissent. my respectful record significance order to understand error, appellant § 15.03(b), limited a statute with dictates of overruling trial court erred contends the analyze its fore must first precedent, one of not for an instructed verdict his motion runner, Article 38.14. required to cor- guilty “the evidence since the corrobo requires that Article 38.14 accomplice witness roborate a defendant tend to connect rating evidence both legally insufficient to corroborate was if the it is not sufficient to the crime and itself and the commission merely shows evidence accomplice act on the solici- intent go to the The evidence must the offense. 15.03(b) V.A.P. required by Sec. tation as However, if the the crime. main issue of agree. IC.” more offense involves gravamen of the criminal indicted for element, then the corrob than one essential Tex.Pe- authority of under the solicitation the defend orating must connect evidence 1974). § 15.03(a) (Vernon It Ann. nal Code the essential elements. Ca ant to each of (Tex.Crim.App. states: gle v. 505 S.W.2d *6 1974); Fortenberry v. if, 579 S.W.2d offense with person commits an A felony (Tex.Crim.App.1979). felony or 482 capital intent that a committed, he re- degree first be the sufficiency of the The test to determine commands, induce attempts to quests, or ac- testimony from an corroboration specific conduct engage in another the evi- to eliminate complice witness is that, surround- the circumstances under accomplice from consideration dence of the actor believes as the ing his conduct of other wit- evidence and then examine felony be, the constitute them to ascertain other sources nesses and from to its commis- party make the other or of incrimi- inculpatory evidence if there be sion. the to connect tends nating character which If offense. to commission accused in- (b) of the same Subsection evidence, is the corroboration such there is as to the court prosecution and the structs v. Cherb sufficient, not. it is otherwise pur- for corroboration is State, 472 (Tex.Crim.App.1971). 273 attempt made to base is poses if an from an testimony prin- conviction Understanding the abovementioned It reads: 38.14, easy to witness. Art. it becomes ciples of § 15.03(b). A under convicted the dictates may not be understand person A § leg- 15.03(b) indicates that reading testi- on the uncorroborated this section principles these same incorporated allegedly solicited islature person mony of the requiring that by mandates made under into its the solicitation and unless connects corroborating evidence that strongly corroborative circumstances strongly cor- to the crime be actor primary and the actor’s both
689
tape
roborative of both the
nothing
solicitation itself and
ter. The
contains
that is in-
person
criminating
regard
the actor’s intent that the other
act
with
solicit-
on the solicitation. The Practice
money.
Commen-
Hancock to kill Harris for
It
tary
precedes
the Title 4 offenses in-
nothing.
corroborates
terprets this subsection of the
as re-
Code
potential
The fact that Harris was a
wit-
quiring
making
corroboration of both the
against appellant
ness
a criminal case
of the solicitation and that its
prove
does not
hired Han-
in earnest.
might
cock to kill him. A motive
be a
analysis
This
makes sense
because
significant piece
evidence,
corroborating
gravamen of the offense of criminal solici-
by
itself it is not sufficient. The evi-
request,
tation is that one must
command
dence
considered
connection with the
engage
or
to induce another
tape
still insufficient to
corroborate testi-
specific conduct and that
this solicitation mony
appellant requested,
command-
capital
was made with the intent
that a
ed,
attempted
or
to induce Hancock to kill
felony
degree
felony
first
committed.
Harris and that
this solicitation was made
Therefore, these are the matters that must
capital
with the intent that
murder be com-
Further,
be corroborated.
it should be not- mitted.
requires
ed that the statute
that the corrob-
Excluding
testimony
Hancock’s
and con-
orating
strongly
evidence must be
corrobo-
sidering
remaining
all the
evidence collec-
rative of both such matters. The use of
tively,
require-
corroborative
“strongly”
the term
in the statute would
15.03(b)
ment of Section
is not met.
legislature
indicate that
intended for
Accordingly,
I would sustain
§
corroborating
15.03(b)
evidence under
judg-
of error and reverse the
just
to be more than evidence that
tends to
ment of the trial
jeopardy
court. Double
connect the
pre-
defendant to the crime as
reprosecution
law bars
of a criminal case in
scribed
Art. 38.14.
which the evidence at trial was insufficient
case,
present
In the
Hancock testified
v.
as a matter of law.
Burks
United
solicited him kill
Har-
States,
1,
2141,
437 U.S.
98 S.Ct.
ris for
The matters that must be
(1978);
Massey,
Greene
L.Ed.2d
appellant requested,
corroborated are that
(1978).
U.S.
98 S.Ct.
corroboration, completely we must disre-
gard Hancock’s and examine the
remaining evidence to determine if it meets *7 § 15.03(b).
the standards of relying tape State is on the record- JOLLY, Appellant, Willie John supply necessary corroboration. Disregarding testimony, Hancock’s arewe Texas, Appellee. The STATE of tape left with the recorded conversation discussing where some form of No. C14-83-693CR. activity in order to make There is Texas, Appeals Court of slight one reference to Harris made (14th Dist.). Houston during Appellant the conversation. told Hancock that he had not heard about July 1984. condition of Harris and that if he seri- ously injured that Hancock’s bail would
$50,000 $10,000, instead of and that his
attorney would check into the situation la-