Campbell v. State

ROBERTS, Judge,

dissenting.

The majority holds that no circumstantial evidence charge was required. I cannot *797 agree. The case should be reversed and remanded on the authority of our recent holding in Casey v. State, 523 S.W.2d 658 (Tex.Cr.App.1975).

In Casey , as in this case:

“The direct evidence sufficiently proved the corpus delicti of the offense. The remaining element of proof essential to the State’s case was that appellant was the guilty agent in causing deceased’s death. Self v. State, Tex.Cr.App., 513 S.W.2d 832 [1974]; Brantley v. State, Tex.Cr.App., 522 S.W.2d 519 (1975).” 523 S.W.2d, at 659 .

Casey was a murder case which was reversed because no circumstantial evidence charge was given. There it was undisputed that the deceased, O’Neill, was killed on May 22, or 23,1973, during a service station robbery. To show that Casey committed the offense, the State relied on Casey’s written confession and on his admissions to Deborah Ann Simmons. Simmons was the only person who testified about Casey’s admissions to her. She “did not at any time identify the place at which the robbery and killing happened, or who was robbed or who was shot. She did not even fix the date of the occurrence, except to say ‘back in May, 1973,’ although on cross-examination she was asked a couple of questions about May 23, 1973.” Id., at 660 .

In discussing whether Casey’s confession sufficiently connected him with the crime, this Court stated:

“In his written confession, appellant admitted that ‘in the latter part of May of this year (1973)’ he and Clifton Currie left a motel room in Dallas together and, using a .32 caliber pistol, committed a robbery at a Gulf or Exxon service station ‘out north’ close to a big freeway, shot the attendant (not named or identified), took between sixty and seventy dollars from the cash box, and drove back to the motel. There is nothing in the statement to identify the service station or the attendant who was shot or the date of the shooting other than as just stated. There is no fingerprint evidence in the record. Although the confession admits to guilt of a robbery and shooting, there is nothing in it which directly connects appellant with the murder of Richard Allen O’Neill. The ultimate fact of whether appellant, either by his own act or as a principal with another, killed deceased, was not established by any direct evidence. Such evidence was necessary to avoid a charge on circumstantial evidence. Crawford v. State, Tex.Cr.App., 502 S.W.2d 768 ; Hielscher v. State, Tex. Cr.App., 511 S.W.2d 305 ; Powell v. State, Tex.Cr.App., 494 S.W.2d 575 ; Blankenship v. State, Tex.Cr.App., 481 S.W.2d 147 ; 31 Tex.Jur.2d, Instructions, Sec. 123, p. 689. See Parker v. State, Tex.Cr.App., 492 S.W.2d 590 . Cf. Hogan v. State, Tex. Cr.App., 496 S.W.2d 594 .” Id., at 660 .

Here, as in Casey, the evidence is clearly sufficient to prove the corpus delicti. And it is clear that the direct evidence showed that the appellant committed an offense; however, the evidence that appellant was guilty of the murder of Robert Ray Campbell is purely circumstantial. I quote from the majority opinion in this case:

“Appellant’s statements to the witnesses Willis and Phillips admitted that he killed a man in Houston, placed the body in the trunk of his 1972 Oldsmobile, took it to Mississippi, asked about the effect of lime on a body, and buried the body of the man he had killed in the motel room in Houston in a shallow grave in the back yard of a friend. Direct evidence established that the place of burial was the back yard of the home of appellant’s friend Laura Virginia Smith in Hatties-burg, Mississippi. Also, the fact that the body buried there by appellant, who started digging the grave the day following the killing and actually buried the body the day after that, was the body of deceased Robert Ray Campbell was established by direct evidence.”

These facts summarized by the majority are direct evidence, but not of the main fact to be proved; instead they are direct proof of secondary facts from which must be inferred the main fact of appellant’s commis *798 sion of this offense. This is the fundamental distinction between direct and circumstantial evidence: See Crawford v. State, 502 S.W.2d 768 (Tex.Cr.App.1973).

I fail to see the distinction between this case and Casey . See also Martinez v. State, 151 Tex.Cr.R. 316 , 207 S.W.2d 387 (1948). Because of the court’s failure to give a charge on circumstantial evidence, 1 the judgment should be reversed.

. I observe that appellant not only timely objected to the court’s charge on this ground, he also filed a timely requested charge setting out the law of circumstantial evidence and applying it to the facts of this case. See Arts. 36.14, 36.15, V.A.C.C.P.