# Kunkle v. State

> Court of Criminal Appeals of Texas · June 18, 1986 · 771 S.W.2d 435

URL: https://www.frixlaw.com/law-library/cases/9641843

## Case

- **Full name:** Troy Albert KUNKLE, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** June 18, 1986
- **Citations:** 771 S.W.2d 435; 1986 WL 62
- **Precedential status:** Published
- **Opinion:** Dissent by Clinton
- **Judges:** Miller, Clinton, Teague
- **Cited by:** 207 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9641843

## How later opinions describe it (automated extraction)

- 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…
- 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 affirma…
- 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
- holding that witness was not accomplice although he was present during crime, did not abandon group that committed crime, and did not report crime

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9641843. Public record. Not legal advice.