Aston v. State
| Decision Date | 15 June 1983 |
| Docket Number | No. 199-82,199-82 |
| Citation | 656 S.W.2d 453 |
| Parties | Milo ASTON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Jimmy Morris, Corsicana, Jim Vollers, Austin, for appellant.
Patrick Batchelor, Dist. Atty. and John H. Jackson, Asst. Dist. Atty., Corsicana, Robert Huttash, State's Atty., and Alfred Walker, Asst. State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Appellant was convicted of murder. The jury assessed punishment at seventy-five (75) years' imprisonment. On appeal the Waco Court of Appeals affirmed the conviction in an unpublished opinion with one justice dissenting.
We granted appellant's petition for discretionary review concerning grounds of error relating to the charge to the jury.
On April 17, 1980, Randy Foster, Everett Wilson and Allen Wayne Johnson met with appellant at his house in Corsicana. Foster owed appellant and Johnson about $3,500.00 for drugs. Foster agreed to kill Jeffrey Rash in exchange for cancellation of the debt.
The next day Foster bought a shotgun, sawed it off and filed it down. On April 20, 1980, Foster picked up Rash and drove to Gibson's store parking lot and met Wilson and Johnson. Foster and Wilson drove Rash out into the country. Johnson followed in his car. Foster took the shotgun and a rope out of the car. They all walked about 150 yards and stopped. Wilson tied Rash's hands. Johnson said, "Do it." Foster shot Rash twice. Foster picked up the shells and they left the scene.
Appellant was not present at the time of the shooting.
Rash's decomposed body was found and later identified. The autopsy reflects death was due to a gunshot wound.
The trial court instructed the jury that the witnesses Foster and Wilson were accomplice witnesses as a matter of law.
Initially we shall consider appellant's contention the court erred in overruling his request that the jury be charged that one accomplice witness cannot corroborate another accomplice witness. He urges that Foster and Wilson were accomplice witnesses and the jury should have been instructed they could not corroborate each other.
Article 38.14, V.A.C.C.P., provides:
"A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense."
The instruction requested should be given where proper. In 2 Branch's Ann.P.C.2d, § 747, p. 44, it is stated:
(Emphasis supplied.) See also Fields v. State, 426 S.W.2d 863 (Tex.Cr.App.1968); Chapman v. State, 470 S.W.2d 656 (Tex.Cr.App.1971).
In Alsup v. State, 118 Tex.Cr.R. 388, 39 S.W.2d 902 (Tex.Cr.App.1931), and Manley v. State, 138 Tex.Cr.R. 379, 136 S.W.2d 613 (Tex.Cr.App.1940), convictions were reversed for the trial court's failure to instruct the jury that one accomplice witness could not corroborate another. Such an instruction is also required where one witness is an accomplice witness as a matter of law and another witness may be found to have been where the issue is submitted as a fact issue to the jury. Fields v. State, supra.
There is no error here. The State called Foster as a witness, but it did not call Wilson even though he had been granted immunity. The appellant called Wilson as a defense witness.
In Cranfil v. State, 525 S.W.2d 518, 520 (Tex.Cr.App.1975), this court stated:
See also Brown v. State, 576 S.W.2d 36, 42 (Tex.Cr.App.1978) ()
The trial court was in error in instructing the jury that Wilson was an accomplice witness since he was a defense witness, but under the circumstances there was no error in overruling the special requested charge.
Appellant urges that the court erred in refusing to grant his request that the jury be charged that the accomplice's testimony relative to "solicitation" must be corroborated.
The court gave the "usual" charge on accomplice witness testimony in accordance with Article 38.14, V.A.C.C.P., but appellant argues the "usual" charge is not always sufficient and the gravamen of the instant murder charge was solicitation "and that the court should have instructed the jury that evidence of the solicitation coming from the accomplice witnesses had to be corroborated." See Fortenberry v. State, 579 S.W.2d 482 (Tex.Cr.App.1979); Cagle v. State, 505 S.W.2d 858 (Tex.Cr.App.1974); Cone v. State, 86 Tex.Cr.R. 291, 216 S.W. 190 (Tex.Cr.App.1919).
Appellant objected to the charge "as a whole for the reason that the same does not require the jury to find that the accomplice's testimony has to be corroborated in regard to each element of the offense, specifically that Defendant Milo Aston solicited Randy Foster to kill Jeffery Rash."
Appellant also requested the following charge:
"Before you convict Milo Aston you must find and believe from the evidence that the accomplice's testimony has been corroborated showing that Milo Aston solicited Randy Foster to kill Jeffery Rash."
Both the objection and the special requested charge were overruled.
The majority of the Court of Appeals held that when paragraphs 4 and 6 of the court's charge are read together the court effectually charged the jury that accomplice witness testimony relative to solicitation must be corroborating rendering the charge in harmony with Fortenberry, Cagle and Cone. One justice dissented holding under aforementioned cases the appellant was entitled to the instruction requested.
Omitting the formal parts, the indictment alleged that Milo Aston and Allen Wayne Johnson, acting together, "did then and there intentionally and knowingly cause the death of an individual, Jeffrey Rash, by shooting him with a gun ...."
It should be remembered that the 1974 Penal Code abolished the distinction between a principal and an accomplice to the crime. Easter v. State, 536 S.W.2d 223, 228 (Tex.Cr.App.1976).
V.T.C.A., Penal Code, § 7.01, provides:
Under the former Penal Code, appellant would have been charged as an accomplice to the crime as he was not present at the time of the commission to the offense. 1 Under the current code it was not necessary to so allege.
V.T.C.A., Penal Code, § 7.02(a)(2) (Criminal Responsibility for Conduct of Another), provides:
"(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or ...." (Emphasis supplied.)
It was the State's theory that appellant was guilty as a party to the crime under said §§ 7.01 and 7.02(a)(2).
The appellant was not present at the shooting and did not testify. Co-defendant Johnson did not testify. Foster testified for the State as to both the solicitation and the shooting. Wilson corroborated Foster as to the solicitation and shooting. The appellant claims there was no corroboration of the testimony of Foster and Wilson as to the solicitation, and since the court charged Foster and Wilson were accomplice witnesses, he was entitled to the requested charge that their testimony as to solicitation had to be corroborated in order to convict. As we have seen, Wilson was not an accomplice witness as he testified for the defense, and the court was in error in charging he was an accomplice witness. Wilson's testimony was thus sufficient to corroborate Foster's testimony.
The effect of appellant's argument is that when a defendant is guilty of the offense charged only as a party under said §§ 7.01 and 7.02, and there is an accomplice witness, that witness' testimony must be corroborated by independent evidence tending to connect the defendant with the offense committed as required by Article 38.14, V.A.C.C.P., but there must also be independent evidence corroborating those factors which would make the defendant a party to the crime. Whatever the continued viability of the Fortenberry line of cases, we decline to apply those cases to the instant case.
While the charge in the instant case is no model, when it is read as a whole, we cannot conclude, given the circumstances of the case, that the error, if any, was reversible error.
Appellant also complains the trial court failed to respond to his special requested charge on the presumption of innocence.
There were two statutes touching on this subject matter at the time of appellant's trial which commenced on April 1, 1981, one in the Penal Code, and one in the Code of Criminal Procedure.
V.T.C.A., Penal Code, § 2.01 (1974), provided:
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