County v. State

• Decision Date: 25 April 1984
• Docket Number: No. 68950,68950
• Citation: 668 S.W.2d 708
• Parties: Charles COUNTY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 708

668 S.W.2d 708

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

No. 68950.

Court of Criminal Appeals of Texas En Banc.

April 25, 1984.

Rehearing Denied May 23, 1984.

Charles D. Butts, San Antonio, for appellant; Shirley W. Butts, San Antonio, of counsel.

Bill M. White, Dist. Atty. and Keith Burris, Bill Harris, Barry Brown and John J. Horn, III, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

McCORMICK, Judge.

Appellant was convicted of the capital murder of Chere Buffington. The special issues required under Article 37.071(b), V.A.C.C.P., were submitted to the jury and were answered in the affirmative. Punishment was assessed at death.

In his first ground of error, appellant argues that the trial court erred in submitting an erroneous instruction on the law requiring corroboration of an accomplice witness. Appellant was charged with capital murder under V.T.C.A., Penal Code, Section 19.03(a)(3):

"(a) A person commits an offense if he commits murder as defined under Section 19.02(a)(1) of this code and:

" * * *

"(3) the person commits the murder for remuneration or the promise of remuneration or employs another to commit the murder for remuneration or the promise of remuneration; ..."

In its charge to the jury, the judge gave the following instruction to the jury on the accomplice witness testimony:

"You are further instructed that an 'accomplice', as that term is hereafter used, includes any person who committed the offense by his own conduct or who acting with intent to promote or assist the commission of the offense, solicits, encourages, directs, aids, or attempts to aid another person to commit the offense.

"A conviction cannot be had upon the testimony of an accomplice unless the jury first believe that the accomplice's testimony is true and that it shows the Defendant is guilty of the offense charged against him, and even then you cannot convict unless the accomplice's testimony is corroborated by other evidence tending to connect the Defendant with the offense charged, and the corroboration is not sufficient if it merely shows the commission of the offense, but it must tend to connect the Defendant with its commission.

"You are instructed that the witness Charles Moore is an accomplice, if an offense was committed. You cannot convict the Defendant upon his testimony unless you first believe his testimony is true and that it shows the Defendant is guilty of the offense charged against him, and even then you cannot convict the Defendant unless Charles Moore's testimony is corroborated by other evidence tending to connect the Defendant with the offense charged, and the corroboration is not sufficient if it merely shows the commission of the offense, but it must tend to connect the Defendant with its commission."

This instruction substantially tracked Article 38.14, V.A.C.C.P. Appellant objected to the charge and requested that an instruction be given which set out the requirement of corroboration to the specific elements of the offense that elevated it to a capital murder.

"The Defendant respectfully objects to paragraph '5' of the propsed (sic) charge further for the reason (as to 'accomplice testimony' of the accomplice witness Charles Moore) for the reason that such proposed charge is insufficient in law as to the manner and how Moore's testimony is to be corroborated, and how such is to be corroborated and to what extent such is to be corroborated as to the facts that make this a case of 'capital murder' against the Defendant CHARLES COUNTY, and the proposed charge or instruction herein complained of fails to advise and apprise the jury as to the amount of and nature and extent of corroboration that is required by law, as is required by law, particularly 19.02 and 19.03(a)(3), Texas Penal Code, and other applicable law, including the law of presumption of innocence and burden of proof."

In Fortenberry v. State, 579 S.W.2d 482 (Tex.Cr.App.1979), this Court held that in a case where the accused is charged with 19.03(a)(1) capital murder, the jury must be instructed, upon the defendant's request, that the accomplice witness' testimony must be corroborated as to the specific elements that make the offense a capital crime. Failure to so instruct the jury constitutes reversible error.

The requirement of this additional corroboration was extended to capital murder cases arising under Section 19.03(a)(3), supra, in Granger v. State, 605 S.W.2d 602 (Tex.Cr.App.1980):

"The essence of the capital murder offense as alleged against this appellant is that he committed the murder, in the words of the indictment, 'for remuneration and the promise of remuneration.' * * * To test the sufficiency of the corroboration in a capital murder case we are constrained to eliminate from consideration the evidence of the accomplice witness and then examine the evidence of other witnesses with the view to ascertain if there be any inculpatory evidence, that is, evidence of incriminating character which tends to connect the defendant with the commission of the offense as to that element which elevates the murder to capital murder. See Fortenberry v. State, supra. If there is such evidence, the corroboration is sufficient; otherwise, it is not. Carrillo v. State, 566 S.W.2d 902, 907 [ (Tex.Cr.App.1978) ]." 605 S.W.2d at 604, 605.

Because the trial court in the instant case refused to give the requested instruction and the jury was deprived of the opportunity to deliberate on the question of appellant's guilt with the guidance of proper jury instructions, we find reversible error.

In his thirteenth ground of error, appellant argues that he was deprived of a speedy trial. He bases his claim on both constitutional and statutory grounds.

The record shows that appellant was arrested for the instant offense on March 31, 1976. He was initially indicted for capital murder arising under Section 19.03(a)(2) on July 21, 1976. Over the course of the next twenty-two months, appellant's case was reset by agreement of both sides some thirteen times. Testimony at the hearing on appellant's motion showed the case was reset each time so that co-indictee Buffington could be tried first. In January of 1978, appellant filed a pro se motion for speedy trial. On June 13, 1978, appellant signed a waiver of speedy trial. Appellant was reindicted for capital murder arising under Section 19.03(a)(3) on April 26, 1979. On May 15, 1979, appellant filed a motion to dismiss for failure to grant a speedy trial. The hearing on appellant's motion was held on May 16, 1979. Testimony at the hearing by Charles Conaway, the prosecutor, showed that from January 24, 1977, to the time of the hearing the State was ready. Trial thereafter commenced on June 4, 1979.

The effective date of the Speedy Trial Act was July 1, 1978. Thus, in determining whether appellant was denied a speedy trial under the Act, Article 32A.02, V.A.C.C.P., we must consider only the delay occurring after July 1, 1978. Goocher v. State, 633 S.W.2d 860 (Tex.Cr.App.1982); Wade v. State, 572 S.W.2d 533 (Tex.Cr.App.1978).

A timely announcement of "ready" is a prima...