Kunkle v. State

TEAGUE, Judge,

dissenting.

Because the majority opinion erroneously holds that Tom Sauls was not an accomplice witness as a matter of law and further erroneously rejects the complaints of Troy Kunkle, hereinafter referred to as the appellant, that relate to the jury charge, I am compelled to dissent.

It is now axiomatic that an “accomplice” is usually defined as a person who, as a party, was connected with the crime for which the accused is on trial. His connection may be by unlawful act or omission on his part. His complicity may be shown by acts of commission or omission transpiring either before, at the time of, or after the commission of the offense, and he need not be shown to be actually present or an actual participant in the crime that was ultimately committed. See Article 38.14, V.A.C.C.P., note 2.

If a person connected with the crime charged testifies for the prosecution against the accused, his testimony is considered to be so untrustworthy and corrupt that a conviction cannot be based solely upon that witness’s testimony. The Legislature has written this age-old principle of law into our Code of Criminal Procedure., See Art. 38.14, supra.

It is also axiomatic that whether a person is an accomplice may be established either by direct or circumstantial evidence and, generally speaking, such must be decided on an ad hoc basis. See Freeman v. State, 654 S.W.2d 450 (Tex.Cr.App.1983); Wygal v. State, 555 S.W.2d 465 (Tex.Cr.App.1977).

In summary, the term “accomplice” includes all participes criminis. Thus, the term “accomplice” should always be given a broad meaning. Holladay v. State, 709 S.W.2d 194 (Tex.Cr.App.1986). Of course, a member of a conspiracy to commit a criminal wrong is an accomplice provided that the conspiracy has not terminated pri- or to the commission of the object crime. Singletary v. State, 509 S.W.2d 572, 575 (Tex.Cr.App.1974). Under V.T.C.A., Penal Code, Section 7.02(b), “If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.” If all of the facts and circumstances of the case reflect or indicate that a person who testifies for the prosecution could have been charged with committing the offense for which the accused is on trial, then that person is, as a matter of law, an accomplice witness, i.e., when, from all of the evidence, both direct and circumstantial, viewed from the standpoint of whether the person’s complicity in the crime has been established, there exists no doubt as to the character of a witness as an accomplice, the trial court is under a duty to so instruct the jury and the failure to do so may constitute reversible error. Burns v. State, 703 S.W.2d 649, 651 (Tex.Cr.App.1985).

By virtue of the Legislature’s enactment of V.T.C.A., Penal Code, Section 7.01, all participes criminis are now called “parties” to the offense.

In this instance, notwithstanding the fact that Tommy Sauls, a person who testified for the State, was connected with crimes that were committed in the City of Corpus Christi on the day in question by the gang of five he was with, the majority opinion erroneously finds and holds that he is not an accomplice witness as a matter of law to *451 any of those crimes, in particular, to the crime of capital murder for which the appellant was tried and convicted partly on the basis of Sauls’ testimony. In fact, the majority opinion, erroneously, even finds and holds that Sauls was not even an accomplice witness as a question of fact.

The facts of this cause reflect that Sauls, who by his own admissions was a 17 year-old “speed, acid, and pot freak,” with four other persons, one of whom was Jerry Russell Stanley, after getting high on L.S.D. 1 and alcohol, and armed with a pistol, entered into an agreement to take a pleasure trip in a small compact Datsun automobile to the sands of Corpus Christi in order “to party.” At the time, Sauls was unemployed and penniless. One can infer from the record that the others, at least financially, were in no better shape.

Stanley, one of the gang of five, not only exhibited or displayed the pistol several times in Sauls’ presence, he actually fired it in Sauls’ presence, with Sauls exclaiming that Stanley should not do that because “Acid and guns don’t mix.” Sauls was thus put on notice that the gang of five had access to a deadly weapon.

Enroute to Corpus, all of the conspirators consumed and ingested more alcohol and acid.

The group’s original objective in going to Corpus “to party” soon changed to the objective of finding someone to rob. I find that at that moment in time, what commenced as a conspiracy to commit the noncriminal offense of partying in Corpus became a conspiracy to commit the crime of robbery in Corpus.

I pause to point out that after the gang of five arrived in Corpus, Stanley, a member of the gang, almost immediately attempted to burglarize someone’s automobile by using the pistol. Although Sauls did not participate in the attempted burglary, he was able to observe it. Thus, he was once again put on notice that any member of the gang had access to the pistol.

Soon thereafter, Stanley and another member of the gang of five, other than Sauls or the appellant, robbed an individual, who was then using a telephone in a phone booth at a convenience store. The robbers obtained the grand total of $7.00 from their victim. At that time, Sauls was nearby and observed what had happened. Although Sauls did not actually participate in the robbery, he became very much concerned over how much money was obtained from the victim, which, as noted, was $7.00.

Thereafter, the gang of five discussed finding another victim to rob. Concerning the proposed second robbery, Sauls himself testified:

“We went driving around. We were looking for somebody else to rob. We were looking for something [sic] else to rob to get some money.” (My emphasis.)

The conspirators soon found another victim. This victim was not as fortunate as the conspirator’s first victim, as this individual was not only robbed but also murdered. Taken from this victim was the grand sum of $13.00.

When the robbery-murder occurred, Sauls was then sitting in the backseat of the small compact Datsun vehicle the gang of five was then occupying. Sauls testified that when the victim was struggling with one of his co-conspirators, and shot by the appellant, he was oblivious to what was then happening in the front seat of the car, where the murder took place.

Stanley also testified for the State. In addition to what I have stated, Stanley himself testified that he was one of the two persons who committed the first robbery and, before the appellant murdered the second victim, he held the loaded pistol to the head of that person, but, because he was weak-kneed, he could not pull the trigger on the pistol, thus causing the appellant to intervene and kill the victim. Stanley also testified that he was encouraged to participate in the second robbery because he believed that Sauls had agreed to be part of the gang’s agreement to rob that person and was also encouraged to participate in *452 the second robbery because he believed that Sauls was going to be a lookout for the gang in order to warn them in the event that the police approached the gang’s vehicle when they were committing the second robbery. Sauls himself testified that if a police car had approached the gang’s vehicle he would have warned the others. Unfortunately for the second victim, the police never appeared on the scene when the second robbery that turned into a murder occurred.

Sauls testified that what he had witnessed “shocked” him.

The gang soon fled from Corpus back to San Antonio.

Notwithstanding that Sauls was “shocked” by what he had witnessed, he nevertheless remained with the gang. In fact, Sauls accompanied the gang the next day on another pleasure trip that the gang took, this time to Canyon Lake where the members of the gang spent proceeds that came from the last robbery. Sauls was a beneficiary of what was purchased, some more acid and alcohol, and the record clearly reflects that he knew that the money that was used to make the purchases came from the second robbery.

Several weeks later, when the police were zeroing in on Sauls, who had moved from San Antonio to Austin, he responded to the police’s attempts to contact him, and gave them an exculpatory statement concerning his involvement in the murder. The record reflects that no charges were ever filed against Sauls, and Sauls denied that he had made any deals with the police or the prosecution in exchange for his testimony against the appellant.

Conspiracy is usually defined as an agreement between two or more persons to achieve an unlawful object or to achieve a lawful object by unlawful means. Thus, the offense of conspiracy is complete as soon as the criminal agreement is entered into. Dill v. State, 35 Tex.Cr. 240 , 33 S.W. 126 (Tex.Cr.App.1895); Witt v. State, 146 Tex.Cr.R. 627 , 177 S.W.2d 781 (Tex.Cr.App.1944). In order to agree to an object of a conspiracy, the conspirator must have knowledge of that objective, but such knowledge may be inferred from the circumstances. See United States v. Gallishaw, 428 F.2d 760, 763 (2nd Cir.1970). Once the existence of a conspiracy has been established, only “slight evidence” is necessary to support a jury verdict that an individual was a member of the conspiracy. United States v. Weber, 437 F.2d 327 (3rd Cir.1970).

The existence of a conspiracy is usually proved in one or more of three ways: by circumstantial evidence, by the testimony of a coconspirator who has turned State’s evidence, or by evidence of the out-of-court declarations or acts of a coconspirator or of the defendant himself. The gist of the conspiracy is the agreement, and most conspiracy convictions rest on inferences from circumstantial evidence. Thus, a conspiracy may be established by circumstantial evidence. Rice v. State, 121 Tex.Cr.R. 68 , 51 S.W.2d 364 (1932). Also see 72 Harvard Law Review 920.

However, a defendant may not be guilty as a co-conspirator “by reason of mere association.” Nassif v. United States, 370 F.2d 147, 153 (8th Cir.1966).

In this instance, the jury was not instructed on the law governing conspiracy, or on the fact that Sauls might have been a coconspirator, or that a conspirator can be an accomplice.

Although close, given the facts and circumstances of this case, I would find that a rational trier of fact could find that Sauls entered into an agreement with the other members of the gang of five to commit the second robbery and that the murder of the second victim was a foreseeable result of the agreement to rob. Thompson v. State, 514 S.W.2d 275, 276 (Tex.Cr.App.1974); Section 7.01, supra.

In Fantroy v. State, 474 S.W.2d 490 (Tex.Cr.App.1972), this Court, in discussing several of its past decisions, pointed out that the mere fact that one was seen with the actual hijackers, even though he did not actually participate in the hijacking, was sufficient to support that person’s conviction as a principal to the commission of the crime. It was also pointed out that fleeing from the scene of the crime with the actual *453 gunman was sufficient to make one a principal to the crime. The Court then stated: “In the present case, the testimony of the appellant and co-defendants show that they knew each other in California. Appellant was not merely present with Wright in the store. They ran out of the store together, fled the scene together in an automobile and were arrested together. The sack containing the same amount of money taken in the robbery bore appellant’s thumb print. We hold that the evidence was sufficient for the jury to conclude that appellant was a participant and a principal in the robbery.” (492).

A recipient of proceeds from a robbery, who was present when the robbery was planned and executed, and fled with the actual hijackers, has been held by this Court to be an accomplice witness as a matter of law. See Colunga v. State, 481 S.W.2d 866, 869 (Tex.Cr.App.1972).

As easily observed, see supra, the incriminating direct and circumstantial facts in this cause are far more impressive than those adduced in Fantroy, supra, or Co-lunga, supra. Also see and compare Drakes v. State, 505 S.W.2d 892 (Tex.Cr.App.1974). And yet, the majority opinion holds that the circumstantial evidence that was presented in this cause is insufficient to make Sauls an accomplice witness as a matter of law. I disagree.

Given the facts and circumstances of this cause, I find that Sauls nicely fits within the following long established rule of this Court: “Where several persons are acting together in pursuit of an unlawful act, each one is liable for collateral crimes, even though unplanned and unintended and committed by other principals, if those crimes are the foreseeable, ordinary and probable consequences of the preparation or execution of the unlawful act. (Citations omitted.)” Thompson v. State, 514 S.W.2d 275, 276 (Tex.Cr.App.1974).

Assuming arguendo that Sauls was not an accomplice witness as a matter of law under the law of parties, the majority opinion is still erroneous in holding that “there was no evidence raising the possibility that Sauls conspired with the others to rob the deceased_” (My emphasis.)

To the contrary, as I believe I have demonstrated, there is an abundance of evidence to establish this fact. One need only look at Sauls’ own testimony and the testimony of Stanley, supra. This evidence, standing alone, would have been sufficient to permit the jury to find that Sauls entered into an agreement with the others to commit the second robbery, if not also the first robbery. The jury, however, was not instructed on this phase of the law, but was only instructed pursuant to the provisions of Section 7.02(a)(2). The appellant’s complaints going to the jury charge go to his assertion that the jury should have been instructed that even though it found that Sauls did not do any affirmative act in the commission of the second robbery, nevertheless, if it also found that Sauls was a coconspirator to the robbery, then they could find that he was an accomplice witness to the capital murder that was committed, therefore necessitating that Sauls’ testimony be corroborated before a conviction could be obtained based upon his testimony. See V.T.C.A., Penal Code, Section 7.02(b). The jury, however, was never given this option. I would hold that the trial court erred in refusing to so instruct the jury, and would further hold that this omission harmed the appellant.

For the above and foregoing reasons, I respectfully dissent.

. The word "acid” is a shorthand rendition of the more technical term lysergic acid diethyla-mide, which is also usually referred to by only the initials L.S.D.