# Hoover v. State

> Court of Criminal Appeals of Texas · April 21, 1965 · 390 S.W.2d 758

URL: https://www.frixlaw.com/law-library/cases/9666203

## Case

- **Full name:** Sam HOOVER, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** April 21, 1965
- **Citations:** 390 S.W.2d 758
- **Precedential status:** Published
- **Opinion:** Dissent by Morrison
- **Judges:** Belcher, Morrison
- **Cited by:** 12 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/9666203

## Opinion text

MORRISON, Judge
(dissenting).
Appellant was constructively present at all times by virtue of the three telephone conversations with his confederates during the course of the robbery. In the first call he asked one of his partners in crime if they had found anything, received a negative reply and said that he would call back later. In the second call they reported to him that they had found the items listed in the indictment. In the third call he instructed them to look in the deep freeze and in the attic in their search for the $300,000 which all parties supposed was concealed somewhere in the house.
*763 Under the rule announced in Schwartz v. State, 158 Tex.Cr.R. 171 , 246 S.W.2d 174 , and discussed in Vol. 1, Vernon’s Ann.P.C. XII; XV, appellant, if not by the first telephone call, then by all three calls, was doing something which associated him with the execution of the unlawful act at the very time the robbery was being committed making him a principal and not an accomplice as submitted in the court’s charge.
The converse of what we have here was ably stated by this Court in Serrato v. State, 74 Tex.Cr.R. 413 , 171 S.W. 1133 , wherein the Court said:
“It is a correct proposition of law that one charged in an indictment as a principal cannot be convicted as an accomplice to the crime — they are separate and distinct offenses.
“ * * * Our decisions hold that the dividing line between principals and accomplices is that to constitute one a principal he must be doing something in furtherance of the common design, at the time the offense is committed, whether present or not, while an accomplice is one who, though having advised and agreed to its commission, is not present when the offense is committed, and who is not doing anything at the time in furtherance of the common design * *
In the relatively early case of Bass v. State, 59 Tex.Cr.R. 186 , 127 S.W. 1020 , this Court said:
“If the party charged, though not actually present, is engaged in or is doing something in the chain of causation which leads up to the offense and-is a necessary part of its accomplishment, he is a principal, though he may not be at the immediate time actually present. $ $ ‡ »
See also Hext v. State, 104 Tex.Cr.R. 46 , 282 S.W. 242 and White v. State, 154 Tex.Cr.R. 489 , 228 S.W.2d 165 .
I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9666203. Public record. Not legal advice.