*1 full, responsive, gave coherent (Tex. answers to v. Townsend ; his interrogators. organized Cr.App.1968) He exhibited and see Ainsworth v. thought spoke complete sentences S.W.2d question required yes more than a Appellant’s single ground of error has military or answer. The record of his carefully considered and reversible service does not indicate the existence of judgment is error not found. problems mental shows honorable trial court is affirmed. discharge. request No was made for a psychiatric or for a determi- examination Opinion approved by the Court. appellant’s sanity nation оf before or dur- nor his trial. Neither
court-appointed counsel manifested the
slightest competency doubt as to mental ability
or to understand the offense indictment, charged, proceedings, trial SINGLETARY, Appellant, John Thomas cooperate intelligently assist defense efforts. Texas, Appellee. The STATE of Fundamental error now claimed be- No. 47938. judge cause of the failure of trial Appeals Court Criminal Texas. punishment phase halt the trial separate ap- hearing and conduct a May 22, 1974.
pellant’s immediately mental state after the Rehearing Denied June 1974. foster as mother testified shown above. other facts and cir- ambience of all the complete cumstances of the record con- unsure,
flicting, and indefinite
the foster mother was not sufficient grounds for the trial
create reasonable
judge competency ap- to doubt the
pellant to In Boss v. stand trial. (Tex.Cr.App.1972) S.W.2d judge required
said: trial is not “The his own motion
conduct such a brought any significant being facts
absent or absent circumstances
to his attention have indicated
and actions which should Here separate determination.”
need for a circumstance or ac- record shows no during the a need
tions which indicated separate determina- proceedings for a to stand competency appellant’s
tion of the And, indicated, groping of the
trial. nonculpable explana-
foster for a mother alleged misconduct appellant’s
tion of sufficient, all the circum- under alone and a
stances, in the trial require a halt
separate determination Zapata
comрetency. Perryman (Tex.Cr.App.1973); (Tex.Cr.App.1973); 494 *2 ap- questioned
date offense officer, pellant, about then Dallas ap- that the since it was known pellant seeing wife deceased’s were conversation, ap- During the each other. pellant stated that he heard of the incident *3 superior that ovеr the radio and told previous day, duty the after he off was of He- party at the residence he went to a that the deceased’s wife len Cundiff and Subsequently, Lieuten- present. also was dis- reported information ant the Wood the hom- during closed conversation icide detectives. investigation оf the
During their Stout murder, appel- homicide detectives obtained the and submitted lant’s service revolver test, produced a which same for ballistics After further conver- inconclusive results. appellant, the detectives sations the with had turned learned that original over to the service revolver quartermaster repairing for on the date pistol. another the offense and was issued Dallas, Hampton, appellant. for Jack original retrieving After Henry Wade, Atty., Dist. and B. John quartermaster, service revolver from Tolle, Dallas, Atty., Dist. D. Asst. Jim discovered, through the use the detectives Austin, Vollers, Atty., State’s tеst, the same of the ballistics to be State. weapon. murder accomplice witness Lester The Webber OPINION employee of Cun- testified that he was an The witness diff of 1972. June ONION, Judge. Presiding further that on the evening testified 18, 1972, he, upon request of June by jury a as was convicted Bizor were en- and Michael emplоyer, accomplice to offense of murder when the deceased route to murder as- punishment was malice wherein Aft- down. driving truck he was broke years. twenty-five (25) sessed at were a the twosome hitching ride, er challenge the suffi- Appellant does residence approaching the deceased’s ciency standing evidence. out they people “some noticed car squad a Volkswagen next a bus early during the The record reflects that detection passed by.” Fearing instant po- Dallas morning hours of June mission, their Webber the furtherance of body riddled lice the bullet officers found sep- scheme and Bizor abandoned their his residence located Stout at The nearby arated at a convenience store. two scene were Dallas. Present on the Cun- that he called witness further related Stout, women, Mary one of whom was who, picked him diff, appellаnt, along with deceased’s wife. up Upon home. arriv- and returned to her premises, the relin- Dallas at the Lieutenant D. Wood of the James quished his service revolver Department Police that on Cundiff testified either port employer charge against to the de- a witness drove back Webber accessory, accomplice, or an home, principal, an she and a where went inside ceased’s witness. then he not an shot killed him. ed., 2 Branch’s 2d thereafter, pair returned Immediately State, 161 Silba home, appellant re- where Cundiff’s pistol and told Webber trieved his something make have “shе should taken the witness In the instant case witness fur- burglary.” it look like any manner not shown eject- then that the ther testified participated with or to have connected pistol spent cases from his cartridge ed the some charged. Although here the crime in a field behind and discarded them may witness hours before Cundiff residence. Cun- conspiracy into a have entered *4 Stout, apparent that to diff kill testi- The State’s witness Michael Bizor conspiracy had terminated. Under such stat- substantially facts as to the same fied circumstances, it is not shown such further relat- by The witness ed Webber. criminally the witness Bizor was сonnected he, hiring, at ed that Helen Cundiff’s with the of Stout. he to for which agreed kill Stout would part life paid a of deceased’s insurance 125, In Washburn v. 167Tex.Cr.R. free proceeds in addition the benefit this court said: (1958), groceries her For further induce- at store. promised the witness that Cundiff complicity “If had no a stаte’s witness appellant “fix” the traffic would witness’ in the offense for which an accused that, much tickets. Bizor also testified trial, an on his is not that of relief, agreement his was never carried accomplice, may have been his whatever out. complicity with the the com- accused testify in own mission of other offenses.” did not his behalf. See also Matthews Initially, the trial appellant contends that jury refusing charge erred in court accomplice wit- Bizor was an that Michael Thus, agree are unable to we ness. accomplice an witness Michael Bizor was witness or that the evidence raised the fact de has been witness An question complicity. as to his who, prin as a person, either as a scribed accessory, con was accomplice, or cipal, Appellant’s first of error is over- act or by unlawful crime nected ruled. be part, either transpiring his
omission on of, the commis fore, or after at the time Next, complains offense, or not and whether sion charge for the failure to instruct court’s in the participated crime. present jury as an law accessories Ann.C.C.P., 38.14, Vernon’s Article See against the crime of affirmative defense note 2. murder. au- Further, argues, in the citation of if without there a conflict thorities, evidence, charge charge that such should have then re- given since the State’s evidence question of whether the wit jury primarily actions after of fact. lates overt accomplice as a matter ness was an sup- enough is not offense was committed. if there But through offering half other than Detective court stated As this Gonzales 1146, 458, statement made Thomason written 171 S.W. subsequent Fur- arrest. (1914): attempt ther, to introduce the State did accessory “To one an constitute However, into evidence. such statement in the crime and participation state that the statement met appellant contends subsequent all occurred acts must statutory requirement of Article 38.- every the offense. to the commission Ann.C.C.P., should have Vernon’s Tex.App. [413], 419. Welsh explanation of how his an been admitted as accomplice, his one an And to constitute to com- to be used revolver “came service prior to the acts must have occurred mit murder.” commission, doing- time and he at the of the com- nothing the furtherance it should be noted At the outset purpose design.” mon the accused had been the fact 38.22, Artiсle Vernon’s pursuant to warned accessory by Further, one cannot be Ann.C.C.P., his self-serv not render would it- crime reason of connection admissible where the State ing statement only self, must be with his involvement but statement. sought to elicit such had not Ann.P.C., 2d 2 Branch’s the offender. See Cyrus v. 49; ed., Tex.Jur.2d, p. Crimi- Sec. Law, nal Morrison W. Blackburn, Principals, Ac- *5 The Law G. self- also be noted that It should the Tex- complices Accessories and Under the accused are or serving declarations of Statutes, p. XIII 1 Vernon’s behalf, dinarily in his unless inadmissible exception, some such as: they come under replete record
In the instant case the
of the offense
gestae
of the res
being part
testimony
appellant,
the
a
arrest,
with
that
statement or con
part
or
or
offense,
com-
proved by
on
date of the
previously
officer
the
the
versation
his
request for
plied
necessary
explain
Helen Cundiff’s
or cоntradict
to
being
or
learning
by
that
after
first offered
service revolver
acts or declarations
had
prior attempt
Tex.Jur.2d,
to kill
the deceased
Evi
generally
State.
612,
the evi- dence,
Wigmore,
circumstances
Evi
Under such
failed.
Sec.
appellant
1732,
clearly
that
dence,
pp.
denсe
shows
103-105.
deceased
plan to kill the
knew of Cundiff’s
22,
daytime hours of
During
June
committing
in
voluntarily
and
aided her
at the Dallas
appellant was arrested
is therefore our conclusion
the offense.
It
shortly after
Police Homicide Office
that since the
failed
raise
evidence
38.22,su-
to Article
being
рursuant
warned
arising
complicity
issue of
fact
Arizona, 384 U.S.
pra, and Miranda v.
offense, the
after the commission of the
(1966), he
to the Cecil Ruben 80, Vernon’s Article Texas, Appellee. The STATE of may he tried an provides Nоs. 48559-48561. conviction punished before the principal acquittal of the and the principal Appeals of Texas. of Criminal Court against accom prosecution not bar will May 29, 1974. accomplice, the trial of the plice, but would have be such as must Further, ac principal. convicted a new trial or is not entitled
complice tried subsequently just because
reversal Tucker acquitted. has been
principal (Tex.Cr.App. 461 S.W.2d Selby, parte Ex
1970); fact that another 1969). The
(Tex.Cr.App. principal subsequent in a acquitted the
jury an accom itself entitle does not to a new trial. same offense
plice to the juries reach many different instances same evidence. See
opposite results 16 (Tex.Cr.
Rozell
App.1973). ground of error fifth
Appellant’s
overruled. error, judg-
Finding no reversible is affirmed.
DOUGLAS, Judge (concurring). agree do not result but
I concur per- wife should have *7 received
mitted while and awards
commendations far will a trial Army. how Just penalty stage of go at the the State show misconduct Can
the trial? he was the serv- a defendant while
ice? not tax overburdened trial
We proof defendant’s life his- of a
courts with tory. permitted, will If such State Estelan, (Court Arthur A. San Antonio spe- attempt to show doubt counter appointed appeal) appellant. to rebut that of- acts of misconduct cific by a defendant. fered Butler, Atty., Ted Dist. Folsom Jim Attys., Douglas Young, Asst. C. Dist. San lengthen trials with mat- We should Antonio, Vollers, Atty., D. State’s nothing with the has to do issues ter which Jim Austin, for the State. in the case.