Ransonette v. State

ROBERTS, Judge

(dissenting).

I agree with the majority opinion on rehearing in several respects. First, I enthusiastically endorse the majority’s holding that a charge on the law of principals is a State’s charge and does not protect a defendant’s rights. This is because a charge on principals makes it easier for the State to convict. It follows, as the majority recognizes, that a trial court may not substitute a charge on principals — or parties, under the new Penal Code — when a charge on circumstantial evidence is mandated.

I also agree with the statements of the majority that:

“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). ...” Ante, at 43.

However, the majority’s statement of these rules is somewhat ambiguous. What the authorities relied upon hold is that where there is both direct and circumstantial evidence of the main fact to be proved, no circumstantial evidence charge is required. See Dodd, supra, 192 S.W.2d at 264 . The *44 majority opinion should not be read as holding that no circumstantial evidence charge is required where one aspect of the main fact is proved by direct evidence and another by circumstantial evidence; in such a case a circumstantial evidence charge is required. See Coleman, supra, 235 S.W. at 901 .

What I cannot agree with is the majority’s application of these rules of law to the facts of this case. I believe that a circumstantial evidence charge was required and the failure to submit such a charge was reversible error.

The majority relies in part on the testimony of Charles Brown, an FBI agent, who identified the voice of appellant’s co-defendant as the voice of the person who made the kidnap demands over the telephone. As the majority held in Mclnturf v. State, 544 S.W.2d 417 (Tex.Cr.App.1976), this was direct evidence of the co-defendant’s participation in the offense. 1 However, it is not direct evidence of the appellant’s guilt; it is merely evidence of a secondary fact from which appellant’s guilt may be inferred. Anderson v. State, 85 Tex.Cr.R. 411 , 213 S.W. 639 (1919); Burleson v. State, 132 Tex.Cr.R. 2 , 101 S.W.2d 1020 (1936), followed in McCormick v. State, 168 Tex.Cr.R. 489 , 329 S.W.2d 436 (1959), and cited with approval in Blankenship v. State, 481 S.W.2d 147 (Tex.Cr.App.1972).

The majority also relies upon appellant’s presence near the phone booth at the time appellant’s co-defendant made the calls to Brown and on the fact that appellant drove his co-defendant to and from public phone booths. However, under our previous holdings, this kind of evidence is also purely circumstantial.

Thus, in Anderson v. State, supra, a murder case in which the fatal shot was fired by the defendant’s son, the evidence was that the defendant had quarreled with the deceased the day before the killing occurred. The next day the quarreling continued, with the deceased and his brother on one side and the defendant and his son on the other. Later that day the deceased and his brother stopped their buggy on the side of the road and were getting out of the buggy when the defendant and his son approached in their car. The defendant was driving; as the car passed within four or five feet of the buggy, the defendant’s son fired the fatal shot.

In reversing because of the trial court’s failure to give a charge on circumstantial evidence, the Anderson Court held that it is “well established that, when the actual killing is done by another, the mere presence of the accused does not deprive him of the privilege of having his criminal connection with the offense determined by the rule of circumstantial evidence.” Anderson v. State, supra, 213 S.W. at 640 . The Court observed that a charge on principals had been given. Id., at 640. The Court also recognized, but found inapplicable, the rule that

“ ‘Where the facts proven are in such close relation to the main fact as to make them equivalent to direct testimony, a charge on circumstantial evidence is unnecessary.’ ” Id., at 641.

See also Tipton v. State, 95 Tex.Cr.R. 205 , 253 S.W. 301 (1923).

The rule in Anderson was followed in Burleson v. State, supra, a robbery case. In that case the defendant and one Jordan agreed to deliver to the complainant two hundred dollars’ worth of counterfeit money in exchange for sixty-five dollars. On the day of the robbery the complainant agreed with the defendant that the complainant would give Jordan the sixty-five dollars that night even though the defendant and Jordan would not be able to deliver the counterfeit money until the following day. The defendant left the complainant, and shortly thereafter Jordan came alone to the complainant’s room and robbed him of the sixty-five dollars at gunpoint.

*45 The complainant followed Jordan as he left the room. Jordan got into an automobile with the defendant and the two men drove away together. The Court held that the State’s ease was “manifestly” reliant upon circumstantial evidence and reversed because of the trial court’s failure to charge on circumstantial evidence. See also Burrell v. State, 18 Tex. 713 (1857); Ellsworth v. State, 92 Tex.Cr.R. 334 , 244 S.W. 147 (1922); Denny v. State, 473 S.W.2d 503 (Tex.Cr.App.1971).

Similarly, in the case before us the evidence against this appellant is manifestly circumstantial. It must be remembered that direct evidence is that which directly demonstrates the main fact to be proved, while circumstantial evidence is direct proof of a secondary fact which, by logical inference, demonstrates the main fact. Crawford v. State, 502 S.W.2d 768 (Tex.Cr.App.1973).

In this case the main fact to be proved is that appellant was a principal offender. There is direct proof that appellant’s co-defendant committed the offense. There is also direct evidence that the appellant was present near the co-defendant during part of the time that the offense was being committed. And there is direct evidence that appellant was driving the motor vehicle which helped convey the co-defendant during the commission of the offense.

But these are clearly like the facts in Anderson and Burleson : minor, or secondary, facts from which an inference must be drawn. None of these facts, either separately or taken together, directly prove that appellant was guilty as a principal.

Therefore, a circumstantial evidence charge should have been given. The failure to do so was reversible error.

. I would hold that this is not even direct evidence of the co-defendant’s guilt. See the dissenting opinion in Melnturf v. State, 544 S.W.2d at 420 . However, a majority of this Court held otherwise in Melnturf, and I will concede that holding for the purposes of this discussion.