Chapman v. State, 44105

• Decision Date: 16 September 1971
• Docket Number: No. 44105,44105
• Citation: 470 S.W.2d 656
• Parties: Charles CHAPMAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 656

470 S.W.2d 656

Charles CHAPMAN, Appellant, v. The STATE of Texas, Appellee.

No. 44105.

Court of Criminal Appeals of Texas.

Sept. 16, 1971.

Will Gray, Houston (on appeal only), for appellant.

Carol S. Vance, Dist. Atty., Joe S. Moss, Asst. Dist. Atty., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for being an accomplice to the offense of robbery by assault. The punishment was assessed by the jury at 11 years.

The indictment alleged a robbery was committed by David Lee Campbell and John Anthony Leslie, and that prior to the robbery the appellant Chapman and John Odom advised, commanded and encouraged Campbell and Leslie to commit the offense.

Appellant's first conviction was reversed as a result of the trial court's failure to instruct the jury on the law relating to the testimony of an accomplice witness. 446 S.W.2d 326. See also Odom v. State, Tex.Cr.App., 438 S.W.2d 912, where the evidence was held insufficient to corroborate the accomplice witness.

In this appeal the appellant challenges the sufficiency of the evidence to sustain his conviction as an accomplice to the robbery and to show that prior to the robbery he 'advised, commanded and encouraged' the principals, Campbell and Leslie, to commit the robbery which was shown to have occurred on May 23, 1966; that the evidence fails to corroborate Angelia Campbell, an accomplice witness, as a matter of law. He also vigorously urges that the court erred in admitting an oral as well as a written statement allegedly made by Campbell to Officer Hadley 'in the early part of June, 1966' out of the appellant's presence.

Turning first to the question of the sufficiency of the evidence, we observe that Bennie Eileen Crafton testified she and her husband owned the J. C. Supermarket in Harris County, Texas, and that on May 23, 1966, she was robbed at gunpoint at the store of approximately $13,000 by Campbell and Leslie and only the two men participated in the robbery. Leon Gurka, a store employee, who was forced to assist in carrying the money to the getaway car, corroborated Mrs. Crafton's testimony. The car was found abandoned several blocks away with some of the purloined money still in it.

The witness Bonham testified that some time before the date of the alleged offense, Attorney Odom rented office space from him and that the appellant Chapman was Odom's law clerk.

It was shown that on the date of the robbery Angelia Gerring, who later married Campbell, was in jail with Janis Fortenberry and Linda Deal for the offense of car theft where they remained 'a couple of hours' before they were released on bond. From the bondsman's office they were taken to Odom's law office 'late in the evening.' There Angelia testified she saw the appellant. Later Campbell came in with some money in a briefcase but she did not remember 'what all happened exactly' and she thought the appellant was in the office at the time but she was 'not for sure.' Later she stated that when she, Campbell, Odom and the appellant were together in the office 'we was taking about where they got the money and stuff * * * when David come in he said he had pulled a job at J. C.'s and had the money and stuff, and then I don't remember what all happened it's been such a long time back.' It was not shown that the other alleged principal Leslie was ever present at Odom's office. ¹

Angelia Campbell did not remember taking any of the money for taxi fare home or any of the other details. Her testimony was a far cry from that described in Odom v. State, supra. She recalled that Odom came in the office and then went out. She did not recall what, if anything, he said. She did not remember returning to Odom's office. She testified that later Campbell told her he and Leslie had committed the robbery, but she did not remember whether he had told her where he had gotten the guns used or about any arrangements made with the appellant or Odom. She related that the appellant told her 'that if she needed any money to let him know, but that's all I really remember about the money * * *.' The date of such statement attributed to the appellant was never established.

Later she was permitted to testify, over objection, that Campbell told her that when he and the appellant were arrested (on May 25, 1966) they were discussing the money taken in the robbery.

Houston Police Captain Colley testified he and Officer Bankston arrested the appellant and David Lee Campbell in a public cafeteria about 1:30 p.m. on May 25, 1966. He stated he acted under the authority of a Louisiana fugitive warrant in arresting Campbell and that appellant's arrest in connection with the alleged robbery was warrantless. He related that at the time the appellant had a pen in his hand and there was recovered from a table where the two arrestees were seated a paper napkin which bore the following notations:

"4400

600 me 600

3800

600 bonds

3200

400

2800

100

2700.00

700

2000.00"

Angelia Campbell also testified that 'several days' after the encounter in Odom's office (the exact date never being established) the appellant and another man came to her house attempting to get her to sign an affidavit or affidavits stating that the appellant had no connection with the robbery. She refused and the appellant was then arrested at her home by the police. she thought this occurred after her appearance before the grand jury but she was not sure. When she was unable to positively identify the affidavit forms, their offer into evidence by the State was withdrawn.

Houston Police Officer Hadley testified that in the 'early part of June, 1966' he had gone to San Francisco and taken custody of David Lee Campbell from the California police and that Campbell had in his possession money taken from a robbery at a Houston K--Mart not shown to have been connected with the appellant. Hadley then testified, over vigorous objection, as to an oral statement made by Campbell as well as a written statement (dated June 16, 1966) while he was under arrest and out of the appellant's presence confessing his guilt and implicating the appellant. Hadley related that Campbell told him the guns which had been taken from Campbell's possession were the guns used in the alleged robbery and that they had been obtained in an earlier burglary and had been given to him by the appellant Chapman; ² that the money taken in the robbery had been given to the appellant and Odom; that when he and the appellant had been arrested together the appellant had in his possession $1,000.00 from the robbery ³ and had written on a paper napkin the manner in which the money was to be split.

Hadley also testified that the appellant had been arrested at Angelia Campbell's home in possession of affidavits which he had attempted to get her to sign.

In determining the question of the sufficiency of the evidence presented, we must bear in mind the nature of the offense with which appellant is charged under Article 70, Vernon's Ann.P.C. ⁴

'The courts have characterized an accomplice as a person who has completed his offense before the crime is actually committed, and whose liability attaches after its commission, by virtue of his previous acts in bringing it about through the agency of or in connection with third parties.

'To make one an accomplice, he must be connected in some way with the crime charged and under investigation; it is not sufficient that he may have been allied or connected with the principal in some prior transaction that was a violation of the commission of the offense, and he must not have been present when it was committed, or then have been doing anything in furtherance of the common purpose and design.

'The mere fact that a person knows that a crime is being committed or is about to be committed and conceals or fails to disclose that fact, tacitly acquiesces in its commission, or uses words that amount to a permission to commit it does not make him an accomplice. To constitute a person an accomplice he must have done those things denounced by the statute in bringing about a subsequent offense. That is to say, knowing of the principal's unlawful purpose, the alleged accomplice must have advised, commanded, or encouraged the principal to commit the offense, or agreed to aid him, or have aided him in its commission, as provided by the statute. It is not necessary, however, that he and the principal should have entered into an agreement to commit the offense, if before the act was done he advised, commanded, or encouraged the principal to commit it.' 16 Tex.Jur.2d, Criminal Law, Sec. 70, pp. 190--192.

We turn now to the sufficiency of the evidence, noting that the trial court charged the jury that Angelia Campbell and David Lee Campbell were accomplice witnesses as a matter of law and instructed them on the law relating to accomplice witnesses. See Article 38.14, V.A.C.C.P. Since David Campbell did not testify, the charge apparently had reference to testimony which attributed certain statements to him. The State has repeatedly contended that Campbell was a co-conspirator, and it is observed that since 'a co-conspirator is an accomplice, a conviction cannot be sustained on the uncorroborated testimony of a co-conspirator.' 12 Tex.Jur.2d, Conspiracy, Sec. 10, p. 333. And it is a fundamental principle that the testimony of one accomplice witness cannot corroborate another accomplice witness' testimony. 24 Tex.Jur.2d, Evidence, Sec. 695, p. 331.

Assuming, without deciding, that the testimony of Angelia Campbell and the statements attributed to David Lee Campbell each separately established the appellant's guilt as an accomplice to the crime of robbery alleged, we apply the test discussed in Edwards v. State, Tex.Cr.App., 427 S.W.2d 629, and eliminate from consideration their testimony which the court instructed the jury was that of accomplice witnesses and which could not be used to...