*1 ODOM, Before CLINTON and TEAGUE, JJ.
143 OPINION I him I going A: told that was to need help my some and cousin would have to CLINTON, Judge. help me from San Antonio. the offense of criminal solicitation1 in which the en lenged. This is an years sufficiency confinement. jury appeal assessed of the from a punishment conviction is chal- is sev- was to money was there. A: No. covered. That was his Q: And did [*] 1, help you? to [*] you sure that tell him [*] job, [*] how to your [*] sure the cousin [*] was jury’s intended victim was his second conversation conversation, appellant an unidentified informant flected that David Galindo and David Sheetz received information on or about appellant “wanted Galindo’s Viewed in a verdict on or about somebody receipt undercover light guilt, appellant July telephone advised Galindo disappear.” wife July the evidence re- 12,1976. favorable police 5, indicated the resulted in 1976 from call informed officers In this to the from In a he A: A: tell the Defendant how but let me ask killing of his wife? his wife. Q: Now, I Q: Yes sir. [*] Was Yes, away Schwenk, your sir. [*] believe heard on the with his wife? * * * cousin, * * * you, [*] also I He was to please Overdose. O.D.”4 to as # help you stated sir, were # help with the going tape, [*] you kill to Galindo of her work and home addresses. Galindo testified that his “cousin” was $8,000 price A contract was discussed. partner fact his in this opera- undercover conversation, In a third advised tion, Officer David Sheetz. $2,000. only pay Galindo he would The record does not reveal how suggested meet and discuss the obtained, presence July lant's was but on Appellant matter face to face.2 agreed to he met David Sheetz for the first bring $1,500 meeting so Galindo parking time in the lot of Northline Bank. 26, 1976, could count it. On According Sheetz, purpose lounge.3 and Galindo met behind a Accord- meeting aswas follows: “Mr. Schwenk had ing testimony: to Galindo’s going two thousand dollars that he was [appellant] “I told I had a cousin me, pay put deposit me—excuse in safety going help thing. that was me on this parking box for his wife.” At the * * * * * * lot, Sheetz, according to * * * approached [appellant]. “I I start- Defendant, Q: What tell the off, up pickup ed walked Gary Schwenk, your cousin was to said, you Gary,’ asked I ‘Are regards doing away do in with his ‘Yes, replied, time he I am.’ He wife? * * * if I I asked was Darrell—
[******] stated was.” I 15.03(a) daily ostensibly 1. V.T.C.A.Penal denounces the wife as she went about her photographs offense of criminal solicitation as follows: routine. These were introduced “A commits an into evidence State’s Exhibits numbered offense with intent through of the first 6. commands, requests, attempts to induce another Though meeting tape recorded. that, specific conduct under the circumstanc- played tape admitted into surrounding es his conduct as the actor be- evidence, for this it is not included in the record be, lieves them to would constitute the Court's consideration. or make the other a its commission." throughout by emphasis supplied give All purpose 2. Another was to opinion indi- opportunity appellant pho- of this unless otherwise Galindo an writer show tographs appellant's the former had taken of cated. he and Sheetz testified that kill Schwenk for remuneration Carol remuneration, discussed how the latter was be contact- promise then “we killed his wife” ed after had will him find criminal solicita- two then entered the in order to rent charged tion to commit bank, box. Inside the in the indictment.”5 paid the fee $5.00 rental and a de- appeal, appellant contends that at posit box was taken out *3 best, the demonstrates his aware- alias, Scott;” “Darrell name and Sheetz’s par- ness of to engaging Galindo’s Sheetz Scott,” however, only signed “Darrell ticipate in the scheme kill Carol to paper work. The were then two taken to Schwenk, that nowhere in the record but box and shown to how he, any appellant, evidence that ac- Sheetz, open According it. to tively as is solicited Sheetz’s involvement “[Appellant] pocket, it from his removed indictment; acqui- in the “mere dollars, counted out the thousand two escence,” argues, is not the same safety deposit box, placed it locked “commanding, requesting attempt- as employee] And the box. [the ing to re- induce” which was the conduct keys and we left Mr. Schwenk both quired charge under the of the court to bank.” justify his conviction. leaving bank, Upon ar- response The State’s is to recount the rested. ante, evidence as we have done then con- cross examination Sheetz testified nothing clude: “There is record to recording of his made suggest anything [appellant] but that be- very appellant “didn’t come out clear” and ‘doper’ lieved to be the he had who nothing in police conceded there was his requested to and induced kill his wife for report to indicate had hired $2,000.00.” responsive this is But not So, Sheetz, kill on redirect wife. proscription contention that the examination, began, the prosecutor against contemplates “criminal solicitation” “Q: you first did see Defend- When active, part initiative conduct on the of one ..., go time, more ant over this one so criminally culpable who to be held there- sure, you that I am did have a conversa- under. your participation tion as to the actual of his wife? Commentary Practice V.T.C.A. Yes, sir, 15.03, 15.03, I
A:
did.
Penal
observes
§
§
supra,
a new
Texas
introduces
offense to
Q:
And what
tell him
“applies
law which
area of
going narrow
were
do?
very
beginning
close to the
A:
told Mr.
that she
Schwenk
enterprise
thought
criminal
repu-
killed
an
I had
overdose.
Indeed,
‘attempted’
an
conspiracy.”
as
it is
being
dope
tation of
dealer
a killer
so
And,
because
solicitation “reaches
out of San Antonio.
make it look
”
conduct,
accidental,
preparatory
if
would fix her
back
it was
far
offenses,
applies
only
serious
with an overdose.”
viz:
and first
felonies. The
In the trial
instructions to the
court’s
Commentary
Practice
sets out an instruc-
appellant's
jury,
conviction was authorized
example, juxtaposing
tive
criminal solicita-
part:
follows
salient
preparatory
tion with
other
offenses
“Now,
beyond
if
find...
should
denounced
Texas law:
on or
reasonable doubt that
about
scope
“The nature and
of Section 15.03
defendant,
July,
...
28th
by a
A
be illustrated
case which
Schwenk,
intentionally
Lee
so,
If B agrees
B kill C.
solicits
knowingly,
with intent that
mur-
B
and either A or
acts in furtherance
request,
der
command
guilty
A
agreement,
and B are
D. B.
induce
Sheets [sic]
language.
appellant alleged
against
the offense in identical
The indictment filed
conspiracy.
If B
(1969).
shoots at C but
Collegiate
Seventh New
Dictionary
misses,
both A and B are
of at-
“Command” means “to direct authoritative-
tempted
If, however,
order;
B
ly;
refuses
dominating
to exercise a
influ-
project,
undertake the homicidal
ence over.” Id. And “induce” means “to
soliciting
on;
influence;
by persuasion
lead
move
[in
B]
law,
criminal under prior
A is
bring
but
to call
forth or
influence or
[now]
guilty of
stimulation; effect,
criminal solicitation under
cause;
Sec-
...
to arouse
tion 15.03.”
by indirect stimulation.”
See also Doty v.
While we intend implication no that the of Officer Galindo to commit mur- Practice Commentary legal constitutes au- der. But for reasons known only to the thority by bound, which this Court is State, such allegation was not the upon review it here for whatever assistance it and, which appellant thus, was tried is not may offer principles relative to statutory the issue before this Court. Neither was applicable construction penal to our code. merely tried for “attempting to Code, See 1.05(b); V.T.C.A. Penal § induce” Officer Sheetz to commit 5429b-2, Article 3.03(l)-(4), V.A.C.S.6 § Another resource in quest for construc- tion is a dictionary, standard from which We therefore pretermit likewise inquiry glean we may “the grammar rules of evidentiary sufficiency to establish usage” common applicable to words or that constituent of the State’s burden of phrases which issue. See V.T.C.A. proof. Code, 1.05(a) (b); Penal and Article § For it is clear that the conduct 5429b-2, 2.01, V.A.C.S. required to be found the —that “Request” is defined as “the act or an appellant requested, commanded and at- asking7 instance of something; tempted to induce David Sheetz to kill make request to or of.” Webster’s New Carol Schwenk for remuneration —was sim- Collegiate (1977); Dictionary ply Webster’s not established the evidence adduced portions The question].” Practice Synonyms se- applica- listed [a ante, particularly lected and ap- "ask;" discussed seem "solicit;” "request;” ble connotation are propriate following: meaning syno- the "shared element” of these statute, construing "Sec. 3.03. or not the statute is In whether nyms by making is "to seek to obtain one’s face, ambiguous on its wants known." among court consider other matters the attained; object sought to be 1.05(a), supra. 8. See § (2) circumstances under which the statute enacted; seen, 9. As we have conduct which is farther (3) legislative history; acts, preparatory down line of is criminal- statutory provi- common law or former Code, (criminal ized V.T.C.A.Penal 15.02 §§ sions, including upon laws the same or sim- (criminal conspiracy) * * attempt). *" and 15.01 As subjects; ilar holding promote such this also best serves "to 5429b-2, supra. Article justice objectives and effect the of the code." calling] 7. "Ask" is defined as act of on for "[the 1.05(a), supra. answer; about; put question speak, utter V.T.C.A., appears trial. the evidence to be While Penal describing statute the offense of criminal prove appellant passively sufficient solicitation, reads: and, thus, participation Sheetz,10 “(a) criminally conspired with Officer commits an offense intent here well or under facts shown that was of the first he re- Sheetz’s involvement had “solic- after been commands, quests, attempts or to in- ited” fact and specific con- duce another to appellant. Accordingly, mind of the evi- that, sur- duct under circumstances support jury’s dence is insufficient rounding conduct as the actor be- verdict. be, lieves them would constitute judgment of conviction is reversed the other to its make acquittal. and reformed to show an commission.” record We have reviewed entire TEAGUE, J., participating. in this cause and find that we must reverse Before the en banc. court holding panel opinion.1 adequate support
record more than jury’s findings. OPINION ON STATE’S MOTION Testimony trial showed that on FOR REHEARING 5, 1976, Officers David McCORMICK, Judge. and David Sheetz of the Houston Police *5 given by an Department were information original panel a of this On submission in appellant informant was interested that appellant’s reversed conviction hiring Through kill his someone to wife. the finding criminal solicitation after that arranged informant a the Officer Galindo ap- that evidence insufficient show telephone during of three calls series actively the of pellant solicited involvement pre- appellant would call Officer Galindo plan D.B. to kill his Officer During the arranged public phone booths. rehearing, In its the State wife. motion 16, July appellant told the second call on holding. us to this asks review he wanted his wife killed. When Galindo Appellant’s pertinent indictment reads $8,000, quoted price appellant Galindo a that he: part it. he have to think about said would knowing- unlawfully “did then and there called July appellant Sometime after intentionally ly and with intent In this a time. conversation Galindo third committed, namely, cap- need be told that he would command, request, help committing and at- the and he ital some Darrell, (sic) cousin, tempt get doper to kill his from induce D.B. Sheets would a Antonio, him. assist Unknown Carol Schwenk for remuneration San actually Galindo’s appellant, Darrell was promise remuneration.” jury, played provides 10. supra, into evidence and in relevant introduced part: appellate not included in the record. opinion mistakenly "(a) panel noted conspiracy of the writer commits criminal tape in with intent be committed: the State had failed to include the that that agrees persons Durrough recently he with one or more held in the record. We them in con- or one or more of (Tex.Cr.App.1985), that State 693 S.W.2d offense; and duct that constitute the would part appellate of the record exhibits performs he or one or more them included, designated or not. whether shall agreement. pursuance of the overt act (b) authority given at the us Therefore based on the agreement constituting conspiracy An V.A.C.C.P.,(now 40.09(12) cover- time in Article parties.” 55), inferred from Tex.R.App.Pro. Rule we directed ed in tape tape is to us. The trial court to forward the panel opinion holding without 1. The made their possession and we reviewed now in our have recording tape between the benefit made determining purpose merits of acting for the appellant and who was Officer although tape, capacity. this case. in an undercover partner, Appellant “Q. Okay, what, anything, Officer D.B. Sheetz. if did $2,000 Gary told Defendant Schwenk pay only Galindo that would do the two dollars at job. July thousand On Galindo and time? lant had a face-to-face behind nightclub on located Airline in Hous- pocket, Drive “A. He removed it from ton. This is the conversation that was out the thousand dol- counted two lars, presented placed recorded it in jury during box, conversation, locked And she During the box. trial. this keys Mr. Schwenk and we left two men discussed the the bank.” arrangements. payment Galindo also brought up the fact that his Darrell cousin thereafter, Immediately appellant was ar- helping would be him and that he parking rested in the lot of bank. splitting money with Darrell. It was Viewing light evidence in that Darrell would meet are compelled favorable verdict we prearranged money bank where the to find that is sufficient would be transferred. appellant “requested, show that command- attempted ed and to induce” Sheetz when 28, appellant (Offi- On and Darrell he met Sheetz at the Bank. Northline Sheetz) cer parking met lot Northline At Bank. trial Sheetz testified original appellant argued submission concerning meeting: as follows record any that the was devoid of testimo- showing ny
“Q. affirmatively re- And enter any kind of quested Officer Sheetz kill his wife for a conversation with Lee panel opinion relying remuneration. that morning? Schwenk the Practice to Section 15.- Yes, sir, I “A. did. 03, supra, dictionary and standard defini- “Q. discuss, And what all “request,” tions of the terms “command” please, sir? held gravamen “induce” that the “A. How the would be collected offense solicitation over turned to me his wife once initiative, which of an active and *6 was dead. Applying holding nature. this to the facts case, panel the that found while the appellant’s passive agree- evidence showed “Q. Did all have a conversation out- ment to Sheetz’s participation, there was side at that time? nothing to show that solicited Yes, “A. sir. Mr. out Schwenk counted Sheetz’s initial involvement scheme. two thousand dollars placed and agree that the solicitation must pocket. in his I asked be of an active and nature. How know, how to contact him after we ever, nothing in there the statute which had killed his wife. He me a requires that the offense has to occur at phone number to call and talked we beginning the of an actor’s involvement in going put- about into the bank and enterprise. a criminal ting deposit in safety the “Section 15.03 introduces new of- names, box in both which we law, penal punishing fense to Texas did.” person who solicits another commit a The two men then went into the degree felony. or first capital The con- and in took out a both box proscribed by 15.03 duct would paid names. Officer Sheetz the $6.00 the responsibility not establish actor’s following rent on the box then the offense, an under Sections 7.01 occurred: 7.02, completed because a offense is “Q. in open safety Did fact the required complicity responsibility; deposit box that time? pun- nor the actor be amenable Yes, sir, conspirator “A. we did. as a since the of- ishment conspiracy, 15.- ised and the method which Sheetz was fense of criminal points to requires agreement and overt act. to kill Carol Schwenk. He the Although in the indictment Hobbs v. 548 S.W.2d some cases solicitous might (Tex.Cr.App.1977) exemplifying at- the constitute a criminal tempt charging means the offense. under Section the usual so- correct of so- licitation would not. Hence criminal Hobbs, however, exactly point. is not applies licitation to a narrow area of con- The reads as follows: indictment Hobbs beginning very duct close to Joyce the 25 “That Hobbs on thought enterprise criminal day July, ... did then and of A.D. 1975 “attempted” conspiracy. of as an knowingly to cause attempt scope “The Section 15.03 nature and of by promising Leon Hobbs death James A by a in which be illustrated case remuneration, pay promising to-wit: so, B agrees B to kill If solicits C. to kill the said Virgil McCuller $100.00 A or B acts in furtherance of and either shooting him James Leon Hobbs with guilty B agreement, A and are both gun.” If A but conspiracy. shoots C attempted Hobbs was convicted misses, guilty A B of at- argued that appeal, murder. On If, however, B refuses tempted murder. fundamentally indictment was defective. project, the the homicidal undertake agreed because the indictment not under amounting sufficiently allege failed law, A is of criminal prior but preparation than mere that tended to more Searcy Section 15.03.” solicitation under but failed to effect commission Patterson, Commentary,” “Practice rehearing, offense intended. On the State V.T.C.A., Penal Section 15.03. argued did not that while indictment designed make Clearly the statute was allege attempted the offense of properly to the level conduct which does rise allege it did criminal solici- conspiracy a criminal offense. fundamentally tation and thus could not be nothing in statute which there is Yet defective. This Court holding panel mandates the although model form of not a State begin- at the conduct must occur forbidden was sufficient to pleading, indictment involvement. ning an actor’s allege the offense of criminal solicitation in Clearly under facts had not been sub- but since offense case, initial involve although consider, Sheetz’s stant fundamental mitted to through came about ment the scheme case had still occurred. Hobbs’ error money appellant’s transfer of Although ap- reversed and remanded. constituted at the Northline Bank proved the in Hobbs as a correct indictment of criminal solicitation as the offense alleging the offense of criminal means of *7 been solicitation, way The fact that Sheetz had opinion Sheetz. in no can be plan initially into the teaching introduced the indictment construed totally We find irrelevant. one must such as the instant case sufficient. or the allege amount of remuneration is to be killed. method which victim other go to consider the now on
We “knowingly and inten- origi phraseology on points raised error capital intent that a points tionally In two other nal submission. re- namely, capital court appellant argues that the trial error to induce quest, command and quash. denying his motion erred (sic)” alleges the ele- clearly in D.B. language no Sheets argues that there is First The remain- criminal solicitation. ments of alleging specific indictment language “to kill Carol Schwenk der have constituted promise of remunera- for remuneration commit. appellant solicited specific clearly alleges should have tion” the indictment He contends V.T.C.A., Pe- murder. constitutes prom- alleged of remuneration the amount 19.03(a)(3). The amount nal promised
of remuneration or the method of Eddy Dean CARR a/k/a necessary allegations are not Edwin Dean Carr offense of solicitation commit v. judge murder. Therefore trial was cor- of Texas. STATE overruling rect motion to quash. 337-83. No. Finally appellant argues that his motion Texas, Appeals Criminal quash granted should have been because En Banc. conjunctive the use of the “and” between “attempt” Sept.
the words “command” and in- disjunctive impos- stead of the “or” made it Rehearing June to determine if sible the indictment was alleging cap- criminal solicitation to commit attempted capital
ital murder or disagree. Under Section 15.-
03, supra, ways soliciting there are three requesting, commanding,
another: (3) attempting long has to induce. It held that when ways
been several
or methods which an offense statute,
committed
forth in the
set
same
Sidney
conjunctively.
(Tex.Cr.App.1978).
Furthermore, we note that authori several placing conjunctive recommend
ties
term criminal solicitation indictments. (3d ed.),
Branch’s Penal Code 646;
p. McClung, Jury Charges for Texas (1985)p. Appel
Criminal Practice 320-321. points
lant’s first and second of error are
overruled. rehearing
The State’s motion for
granted judgment the trial court
is affirmed.
CLINTON, J., dissents, adhering to opinion original submission.
TEAGUE, J., participating.