concluding that waiver of final argument, in the punishment phase of trial, was sound trial strategy
How later courts described this case
- concluding that waiver of final argument, in the punishment phase of trial, was sound trial strategy
- reasoning that waiver of final argument at punishment phase was trial strategy
- Âwe know of no constitutional obligation of the trial court to peruse the prosecutorÂs file for exculpatory evidence in the absence of a specific request supported by some showing that such evidence existsÂ
- Opinion on the Appellant's Motion for Rehearing
Written by the judges who cited it.
The opinion
OPINION ON THE APPELLANT’S MOTION FOR REHEARING
DALLY, Commissioner.
On the appellant’s motion for rehearing we have reconsidered ground of error number two, in which it was asserted that the trial court erred in refusing to submit to the jury the appellant’s requested instruction on the law of circumstantial evidence. On original submission we held that the court’s refusal to submit the requested charge on circumstantial evidence was clearly error, but that the appellant’s rights were adequately protected because the court submitted a charge on the law of principals. A charge on the law of principals is a State’s charge; it does not protect the defendant’s rights. An instruction on the law of principals does not eliminate the necessity for an instruction on circumstantial evidence if circumstantial evidence is relied upon to establish the appellant’s guilt as a principal. McBride v. State, 486 S.W.2d 318 (Tex.Cr.App.1972); Seelies v. State, 172 Tex.Cr.R. 474 , 358 S.W.2d 623 (1962). However, we now find that there was direct evidence of the appellant’s participation in the commission of the offense and that the court’s refusal to submit the requested charge on circumstantial evidence was not error.
Mrs. Dealey could not identify the appellant as the man who was with Woodrow Ransonette when she was abducted by Woodrow Ransonette and another man, but this offense was not completed when she was abducted. The offense was a continuing offense until after the ransom had been paid and Mrs. Dealey had been released. Before Mrs. Dealey was released the appellant was identified by Will H. Griffin, an FBI agent, as the driver of a van which took his brother Woodrow Ransonette to public telephone booths on two occasions. On these occasions Woodrow Ransonette had a telephone conversation with Charles T. Brown who he did not know was an FBI agent.
While Woodrow Ransonette was engaged in acts which constituted a part of the offense for which the appellant and Woodrow Ransonette were indicted, the appellant was identified as the man who was aiding and abetting his brother Woodrow Ranso-nette by taking him to the telephone booths *43 and acting as a lookout while the calls were made. The appellant stood within one foot of Woodrow Ransonette while the telephone calls were made and there was testimony the appellant could have heard both parties to the telephone conversations. There was direct evidence of appellant’s participation in the commission of the offense.
A charge on circumstantial evidence is required only where the evidence of the main fact essential to guilt is purely and entirely circumstantial. See e. g. Wilson v. State, 154 Tex.Cr.R. 59 , 225 S.W .2d 173 (1949). A charge on circumstantial evidence is necessary only when the State’s case depends entirely upon circumstances for conviction. See e. g. Nailing v. State, 152 Tex.Cr.R. 161 , 211 S.W.2d 757 (1948); Wells v. State, 134 Tex.Cr.R. 412 , 115 S.W.2d 658 (1938). An instruction as to circumstantial evidence need not be given where the State relies only in part on circumstantial evidence, Lawler v. State, 110 Tex.Cr.R. 460 , 9 S.W.2d 259 (1927); Coleman v. State, 90 Tex.Cr.R. 297 , 235 S.W. 898 (1921), even though the State relies on a chain of circumstances that may be considered the major part of the evidence on which the State relies for conviction. Dodd v. State, 149 Tex.Cr.R. 156 , 192 S.W.2d 263 (1946). See 31 Tex.Jur.2d 682-683, Instructions, Sec. 123; Morris v. State, 402 S.W.2d 161 (Tex.Cr.App.1966); Russell v. State, 396 S.W .2d 117 (Tex.Cr.App.1965).
Whether the appellant knew what his brother was doing when he made the telephone calls and whether the appellant had the required intent to make his acts in aiding and abetting his brother, criminal acts are matters which need not be shown by direct evidence but may be shown by circumstantial evidence. Davis v. State, 516 S.W.2d 157 (Tex.Cr.App.1974); Barber v. State, 462 S.W.2d 33 (Tex.Cr.App.1971); Schwartz v. State, 172 Tex.Cr.R. 326 , 357 S.W.2d 393 (1962).
In Blankenship v. State, 481 S.W.2d 147 (Tex.Cr.App.1972) the main authority relied upon by the appellant, no one could positively identify Blankenship as the man in the car near the scene of the robbery. In this case Agent Griffin identified the appellant as the man aiding and abetting his brother during the time the offense was being committed.
The appellant’s motion for rehearing is denied.
Opinion approved by the Court.