Richardson v. State

DALLY, Judge,

dissenting.

I am astonished that the reading of this record could lead one to the conclusion that the evidence connecting the appellant with the corpus delicti is too tenuous to support appellant’s conviction, and I am only a little less astonished that others would find that the trial court erred in failing to submit to the jury a charge on circumstantial evidence. However, a plurality of the court for these reasons have reversed the judgment. There can be no.doubt that Greer, the alleged victim, met his death by criminal means. I believe the appellant’s confession, aided by other direct evidence, is sufficient to establish the appellant’s guilt for the death of the named victim either by his own act or the acts of those for whom he is criminally responsible. If in the appellant’s confession he had said that the killing was in Clute rather than in Angleton the majority and concurring opinions would be shorn of any vitality.

If a defendant unequivocally admits or confesses that he killed the deceased, proof of the admission or confession is direct evidence of the main inculpatory fact and a charge on circumstantial evidence is not required. Sloan v. State, 515 S.W.2d 913 (Tex.Cr.App.1974); Hurd v. State, 513 S.W. 936 (Tex.Cr.App.1974); Swift v. State, 509 S.W.2d 586 (Tex.Cr.App.1974); Corbett v. State, 493 S.W.2d 940 (Tex.Cr.App.1973). On the other hand, if the admission or confession is equivocal as to the killing of the deceased, or if it is not clear that the killing admitted or confessed is the killing with which a defendant is accused, proof by the admission or confession alone will not relieve the trial court of the necessity of giving a circumstantial evidence charge. Ridyolph v. State, 545 S.W.2d 784 (Tex.Cr.App.1977); and see Hielscher v. State, 511 S.W.2d 305 (Tex.Cr.App.1974); Martinez v. State, 151 Tex.Cr.R. 316 , 207 S.W.2d 387 (1948). However, even if the confession is equivocal, a circumstantial evidence charge is not necessary if other direct evidence, together with the confession conclusively establishes that the killing confessed is the killing for which the defendant is on trial. Barefoot v. State, 596 S.W.2d 875 (Tex.Cr.App.1980); Ridyolph v. State supra; Hogan v. State, 496 S.W.2d 594 (Tex.Cr.App.1973); Steel v. State, 459 S.W.2d 649 (Tex.Cr.App.1970); Patterson v. State, 416 S.W.2d 816 (Tex.Cr.App.1967).

Many of the details contained in appellant’s confession coincide with the details of the Greer murder as established by other direct evidence. The confession states that the shooting took place October 14, 1976. The evidence establishes that Greer was shot that day. The confession states that appellant fired a .32 caliber pistol and his companion fired a .45 caliber pistol. Pryor testified that he found spent bullets and empty casings of both .32 and .45 caliber, and Dr. Jachimczyk testified that the wounds to Greer’s body were made by .32 and .45 caliber bullets. The confession states that the house in which the shooting took place was next to a junk yard. Pryor testified that the Greer house was next door to a junk yard. The confession states that “the man” and “the woman” were sitting in “lounger” chairs watching television, and that one of the chairs was white. Pryor testified that Mrs. Greer was present when he arrived at the scene soon after the shooting and the television set was on. Pryor also testified that two reclining chairs, one white and one brown, were in the room where the shooting took place. The confession states that the man who was shot had a handgun and shot at appellant’s companion. Pryor testified that he found a .22 caliber pistol belonging to Greer in one of the chairs and that it had been fired. The confession states that the victim was lying on his back when appellant and his companion fled. Pryor testified that Greer was found lying on his back. Hinton testi *827 fied that the description of the house found in the fourth sentence of the fourth quoted paragraph, of appellant’s confession was a reasonably accurate description of the Greer house and the surrounding area.

Other important testimony links the confession to the Greer murder. Hinton testified that he normally learns about every homicide in the county and that he was not aware of any other homicide in the county on October 14, 1976.

The only major discrepancy between the confession and the facts of the Greer murder as shown by other direct evidence is that the confession states that the killing took place in Angleton while the evidence shows that the Greer house was in Glute. The effect of this discrepancy is significantly diminished by evidence elicited during cross-examination of Pryor showing that both cities are located in a heavily populated part of Brazoria County and that a person driving from Houston would pass through Angleton on the way to Clute.

The testimony of the police and the medical examiner, together with appellant’s confession, conclusively establishes that the murder described in the confession is the murder of Raymond Greer. Therefore, the confession, coupled with the other evidence, is direct evidence of the main inculpatory fact and the trial court did not err in refusing to charge on the law of circumstantial evidence. See Barefoot v. State, supra; Ridyolph v. State, supra; Hogan v. State, supra; Steel v. State, supra; Patterson v. State, supra; Chapin v. State, 167 Tex.Cr.R. 390 , 320 S.W.2d 341 (1959).

I am content to rest my dissent on the well established principles of law already discussed as applied to the facts of this case, and I do not necessarily advocate a change, but perhaps we should remember that in most jurisdictions a charge on circumstantial evidence is not required. The Supreme Court of the United States has held that a charge on circumstantial evidence was unnecessary and that a charge such as is given in this State is confusing and incorrect.

“The petitioners assail the refusal of the trial judge to instruct that where the Government’s evidence is circumstantial it must be such as to exclude every reasonable hypothesis other than that of guilt. There is some support for this type of instruction in the lower court decisions, but the better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect.

“Circumstantial evidence in this respect is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more.” (citations omitted.)

Holland v. United States, 348 U.S. 121 , 75 S.Ct. 127 , 99 L.Ed.2d 150 (1954).

The argument against giving a special charge on circumstantial evidence was well stated by Judge Learned Hand in United States v. Becker, 62 F.2d 1007 (2d Cir. 1933).

“The requirement seems to us a refinement which only serves to confuse laymen into supposing that they should use circumstantial evidence otherwise than testimonial. All conclusions have implicit major premises drawn from common knowledge; the truth of testimony depends as much upon these, as do inferences from events. A jury tests a witness’s credibility by using their experience in the past as to similar utterances of persons in a like position. That is precisely the same mental process as when they infer from an object what has been its past history, or from an event what must have preceded it. All that can be asked is that the importance of the result to the accused shall demand a corresponding certainty of his guilt; and this is commonly and adequately covered by telling *828 them that the conclusion shall he free from fair doubt. To elaborate this into an inexorable ritual, or to articulate it for different situations, is more likely to impede, than to promote, their inquiry.” 62 F.2d at 1010 .

A charge on circumstantial evidence is now refused in most federal courts. E. g. United States v. Clements, 588 F.2d 1080 (5th Cir. 1979); United States v. Stokes, 471 F.2d 1318 (5th Cir. 1973).

“At one time it was fashionable to instruct a jury that if the government’s evidence was circumstantial, it must be such as to exclude every reasonable hypothesis other than that of guilt. The Supreme Court has criticized instructions of this kind, saying that ‘the better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect.’ Most courts now refuse to give this kind of instruction.”

2 C. Wright, Federal Practice and Procedure, Sec. 493, p. 319.

The modern trend in state courts is also away from requiring a charge on circumstantial evidence. Note, the Circumstantial Evidence Charge in Texas: A Retrograde Doctrine, 55 Texas L.Rev. 1255 , n. 45 at 1260 (1977).

I dissent to the reversal of this judgment. The conviction should be affirmed under the well established law of this State.

DOUGLAS, TOM G. DAVIS and W. C. DAVIS, JJ., join in this dissent.