finding the evidence failed to even raise a factual issue regarding whether the witness was an accomplice even though the witness was present before, during, and after commission of the murder and knew that: (1) one of the accomplices had a gun and 13 had fired it into the air; (2) the codefendants planned to commit robbery; (3) two of the accomplices used a gun to steal seven dollars from another person immediately before robbing and killing the victim; and (4) the group intended to steal from the murder victim
How later courts described this case
- finding the evidence failed to even raise a factual issue regarding whether the witness was an accomplice even though the witness was present before, during, and after commission of the murder and knew that: (1) one of the accomplices had a gun and 13 had fired it into the air; (2) the codefendants planned to commit robbery; (3) two of the accomplices used a gun to steal seven dollars from another person immediately before robbing and killing the victim; and (4) the group intended to steal from the murder victim
- concluding that individual who knew of planned robbery, failed to abandon group, allowed victim to be induced into vehicle, would have told group if police were coming, and was present when the victim was shot in head was not accomplice witness as matter of fact absent affirmative act
- holding that individual who knew of planned robbery, failed to abandon group, allowed victim to be induced into vehicle, would have told group if police were coming, and was present when victim shot in head was not accomplice witness as matter of fact absent affirmative act
- holding that a witness’s knowledge of a group’s planned crime, failure to abandon the group, and presence at the crime were not sufficient circumstances to warrant an accomplice witness instruction
Written by the judges who cited it.
The opinion
CLINTON, Judge,
dissenting.
Bitter irony marks disposition of the eleventh ground of error — the issue of future dangerousness.
We are told at the outset that appellant was then 17 years of age and at page 449 that there are “possible mitigating factors such as the defendant’s youth or state of mind...,” but if age of this appellant is given consideration anywhere in the opinion I have yet to find it. See Eddings v. Oklahoma, 455 U.S. 104 , 102 S.Ct. 869 , 71 L.Ed.2d 1 (1982).
The opinion recites and holds against appellant testimony of school officials and a probation officer as to his “behavior and attitude problems in school [and] his disregard for rules and the right of others.” To the extent those are symptomatic of deeper emotional problems, such evidence is “at once damning and mitigating,” Stewart v. State, 686 S.W.2d 118, 125 (Tex.Cr.App.1984) (Clinton dissenting, joined by Teague and Miller, JJ.). Despite those problems appellant managed his life without ever being arrested. Yet, none of that is carefully considered and evaluated in mitigation, as it should be, by merely “comparing” Eddings v. Oklahoma, supra.
Finally, the facts, inferences and rationale relied on by the opinion to demon *450 strate that up to the moment appellant grabbed a gun from Stanley and threatened Stephen Horton, the deceased, Tom Sauls was not an accomplice as matter of law or fact would also serve to make appellant similarly blameless. From some mitigating elements mentioned in decisions discussed in the opinion it seems to me that one who has never before been arrested is entitled to have his first criminal act, albeit “senseless” and deliberate, examined in light of favorable mitigating circumstances and apparent extemporaneity of his conduct. Taking an unconstitutional approach at page 449, the Court does not do that.
I dissent.