Eckert v. State

CLINTON, Judge,

concurring.

Though then solving a somewhat different problem in Brown v. State, 576 S.W.2d *366 36,42 (Tex.Cr.App.1979, Opinion on Rehearing), the Court noted and found:

“Section 15.02 holds that a person commits criminal conspiracy when, with felonious intent, he agrees with one or more persons to commit an offense and then one of the group does an overt act in pursuance of the agreement. Thus, the corpus delicti of conspiracy must contain a showing of agreement to commit a crime.” Id., at 42 . [Emphasis by the Court.]

Such an agreement with intent that a particular felony be committed, called a “positive agreement” under the former penal codes, 1 is the sine qua non of the offense of criminal conspiracy, and the common law notion of conspiracy as a multilateral relationship has been abandoned in favor of the unilateral approach of directing the inquiry to individualized culpability, to look to “conduct sufficient to establish the responsibility of a given actor rather than the conduct of a group,” Practice Commentary, following V.T.C.A. Penal Code, § 15.02.

Article 38.14, V.A.C.C.P., set out as note 1 in the margin of the majority opinion, dates back to the Old Code, and was Article 718, C.C.P., 1925. Braly v. State, 125 Tex.Cr.R. 374 , 68 S.W.2d 504 (1934) examined the record for sufficiency of evidence to support a conviction for conspiracy to commit theft against the requirements of what is now Article 38.14.

“.. . It is observed that the accomplices alone testified that there was a positive agreement to commit a felony. Unless they were corroborated as to this positive agreement, the conviction cannot stand. Article 718, C.C.P., provides that a conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant to the offense committed, and further provides that the corroboration is not sufficient if it merely shows the commission of the offense.” Id., 221 S.W.2d at 505.

In this light, it seems to me that the majority focuses its inquiry more on existence of evidence connecting appellant with the actual attempted murder than with an alleged agreement with intent that the murder be committed. See Murphy v. State, 378 S.W.2d 326, 329 (Tex.Cr.App.1964). Thus, it bears down on the evidence which established that the .22 rifle said to have been used by Tineo belonged to appellant, 2 and opines that such renders Tineo’s testimony that appellant gave him the rifle with which to fire at Jordan “more likely than not.” 3 Nevertheless, eliminating *367 from consideration the testimony of Tineo and what he said he and others did and that not tending to connect appellant with the crime charged, as we are required to do, Walker v. State, 615 S.W.2d 728, 732 (Tex.Cr.App.1981), the remaining evidence is sufficient to support the verdict of the jury. 4

Accordingly, I concur in the judgment of the Court.

. E. g., Article 1624, P.C. 1925: “.. . [I]t must appear that there was a positive agreement to commit a felony.” See Wilson v. State, 127 Tex.Cr.R. 152 , 74 S.W.2d 1020 , (1934): “It was essential to a conviction herein that the state establish that appellant and his coconspirators entered into a positive agreement to bum the house ... as charged in the indictment,” id., 74 S.W.2d at 1021 . Rice v. State, 123 Tex.Cr.R. 326 , 59 S.W.2d 119 (1933): “... [W]e are of the opinion ... that it does not show a positive agreement, as required by the statute, to commit the offense of robbery,” id., 59 S.W.2d at 121 ; Rice v. State, 121 Tex.Cr.R. 68 , 51 S.W.2d 364, 365 (1932). (All emphasis is mine unless otherwise indicated.)

. The crime with which the accused in McCue v. State, 75 Tex.Cr.R. 137 , 170 S.W. 280 (1914) was connected was murder. His pocketknife, positively identified by another witness, had been found near the body of the deceased who had been knocked in the head and his throat cut. An admitted participant in the killing, an accomplice, testified that McCue had struck deceased and cut his throat with a pocketknife. The Court found that presence of his pocketknife “tended very strongly” to connect appellant with the murder. However, a distinction between connecting an accused with the crime of conspiracy and with commission of the object offense, though subtle, must be maintained. Murphy v. State, supra, at 329.

.The cases cited by the majority do use this unfortunate phrase, but apparently it was first stated in Warren v. State, 514 S.W.2d 458, 463 (Tex.Cr.App.1974) as “more likely true than not.” Even so, it is not a statement of a primary test for corroboration, only an ancillary follow up. Thus, the thrust of the applicable standard remains the statutory one: accomplice testimony must be corroborated “by other evidence tending to connect the defendant with the offense committed” — here criminal conspiracy. See the statement of the construction “consistently” given the statute and its application by the Court in Thomas v. State, 166 Tex.Cr.R. 331 , 313 S.W.2d 311 (1958); see also authorities collected in Branch’s Annotated Pe *367 nal Code (2nd Ed.) 45, § 748; cf. Murphy v. State; Braly v. State, both supra.

. Stewart recalled that appellant said he “might be lost,” that he had been in the area “at some time in the past and thought he knew it” but could not find the stock, so maybe he was “a little bit lost.” The majority finds that appellant had in fact been to the Wardlaw Ranch one week earlier and suggests that “he could not have been ignorant of how to get there,” thereby implying that the conversation with Stewart was a charade. I am not that confident, but believe that matter of little moment since, whether once or twice, appellant is shown in the territory shortly before the shooting and thus acquainted with it.