Eckert v. State

Decision Date21 October 1981
Docket NumberNo. 60932,No. 2,60932,2
Citation623 S.W.2d 359
PartiesJohn C. ECKERT, Appellant, v. The STATE of Texas, Appellee
CourtTexas Court of Criminal Appeals

Travis D. Shelton, Dale Jones, William R. Moss, Lubbock, Jack Lee, Mason, W. Keaton Blackburn, Junction, for appellant.

Ronald Sutton, Dist. Atty., Junction, Aubrey D. Stokes and Max Parker, Sp. Prosecutors, San Angelo, Robert Huttash, State's Atty., Austin, for the State.

Before ODOM, CLINTON and TEAGUE, JJ.

OPINION

ODOM, Judge.

This is an appeal from a conviction for criminal conspiracy to commit murder. Punishment was assessed at five years' confinement, and seven years probation was granted by the court.

Five grounds of error are urged on appeal: (1) that the testimony of an accomplice witness was not sufficiently corroborated, (2) that the charge to the jury was fundamentally defective, (3) that a motion for change of venue was erroneously overruled, and (4) and (5) that the jury received "other evidence" during deliberations entitling appellant to a new trial under Article 40.03(7), V.A.C.C.P.

PART I

We first consider the sufficiency of the corroborating evidence. 1 The testimony at trial establishes the following facts. Appellant was the owner of a livestock auction and the employer of the accomplice witness, Emiliano Tineo. Willard Jordan owned a competing auction and was the intended victim of shots fired in the early evening of March 31, 1976. Jordan testified that he received a phone call on that morning from a caller urging him to examine some cattle near London, Texas. Jordan followed the directions given to him which led him to the Wardlaw Ranch. While slowly driving through the area where the cows were to have been, he turned and noticed a man preparing to fire a rifle at him. As a shot was fired he sped away without injury.

Based upon Jordan's description of the gunman, authorities apprehended Tineo, who confessed to the shooting and led authorities to the hidden rifle he had used. Tineo's statement incriminated the appellant by stating that his employer had offered to pay him $5000 to shoot Jordan and had provided him with the rifle. Additionally, appellant had taken Tineo to the scene of the shooting the day before the offense as well as on the 31st. Tineo identified the appellant at trial.

The testimony of an accomplice witness is untrustworthy and should be received and viewed with caution. Walker v. State, 615 S.W.2d 728 (Tex.Cr.App.). To test the sufficiency of the corroboration, the testimony of the accomplice is eliminated from consideration and the evidence of the other witnesses is examined to ascertain if there is any inculpatory evidence that tends to connect the accused to the commission of the offense. Infante v. State, 612 S.W.2d 603 (Tex.Cr.App.); Edwards v. State, 427 S.W.2d 629 (Tex.Cr.App.). Applied to this case, we must examine the non-accomplice testimony to determine if there is evidence tending to connect the appellant to the commission of the conspiracy.

The corroborative testimony need not directly link the accused to the crime or be sufficient in itself to establish guilt. Otherwise, the testimony of the accomplice would be valueless. Carillo v. State, 591 S.W.2d 876 (Tex.Cr.App.); Reynolds v. State, 489 S.W.2d 866 (Tex.Cr.App.); Runkle v. State, 484 S.W.2d 912 (Tex.Cr.App.). The corroboration need only make the accomplice's testimony "more likely than not." Carillo, supra at 883; James v. State, 538 S.W.2d 414 (Tex.Cr.App.); Bentley v. State, 520 S.W.2d 390 (Tex.Cr.App.). Further, it is not necessary to corroborate the accomplice in all of his testimony. Walker, supra; Edwards v. State, 427 S.W.2d 629 (Tex.Cr.App.).

The evidence in the instant case establishes that the .22 rifle that had fired the shell recovered at the scene was positively identified as belonging to appellant. Additionally, the testimony reflects that the slug which was taken from Jordan's truck was probably a .22. Although this evidence does not directly establish appellant's guilt in entering into an agreement with Tineo to execute the murder, it certainly "tends" to connect him with the offense, McCue v. State, 75 Tex.Cr.R. 137, 170 S.W. 280, and renders Tineo's testimony that appellant gave him the rifle with which to fire at Jordan more likely than not.

The record also contains other incriminating circumstances that combine with appellant's connection to the weapon to satisfy the test for corroboration. Appellant testified that Tineo had worked for him for only two weeks before the shooting occurred. He told appellant he needed money for a trip to Houston and asked him two days before the shooting if he had any work that he could do alone. Appellant's statement related that he took Tineo to his father-in-law's ranch on March 30th, picked him up on the following afternoon and let him off on the road near Mason because Tineo wanted to visit a friend. Tineo had not been paid and had none of his belongings at the time he was later apprehended by the sheriff.

Additionally, witness Stewart testified that ten days before the shooting, he saw appellant about one mile north of the Wardlow Ranch pens. Appellant stated that he was in the area to view some cattle and sought directions to the pens, indicating that he was lost. The remote area to which Stewart directed appellant was the same as where the shooting occurred. Also, appellant had been to the same ranch one week earlier, suggesting he would not have been ignorant of how to get there. Jordan's testimony that the directions to the scene of the attempted murder were related to him the morning of March 31st by a voice that was "definitely Anglo" shows that someone besides Tineo, who spoke no English, was involved.

Appellant has urged that Walker v. State, supra, is controlling and supports reversal of his conviction. In Walker, however, the facts before us were clearly insufficient to sustain a conviction. There, this Court refused to consider evidence that the police recovered a rifle pursuant to the accomplice's directions as tending to connect the defendant to a murder. There was absolutely no connection between the weapon and the use of that weapon by the defendant to murder the deceased. In contrast, the weapon recovered here was positively identified as belonging to appellant. In Walker, the rifle was stolen and even if there was evidence to connect the defendant to the rifle, the connection was to the extraneous offense of theft and not to the commission of a murder. Furthermore, the bullets recovered from the victim in Walker could not be sufficiently correlated to the recovered weapon and the record established that the bullets could have been fired from eight different models of .22 caliber rifles. This variance is clearly distinguishable from the strength and quantum of corroborative evidence in the instant case. The non-accomplice evidence here tends to connect appellant to the offense.

The evidence is sufficient to corroborate the accomplice witness. We overrule the ground of error.

PART II

Appellant objects to the charge to the jury contending that the trial court erroneously shifted the burden of proof to appellant by failing to separately charge each element of the offense of a conspiracy to commit murder. Essentially, the argument is that the charge may not apply the burden of proof beyond a reasonable doubt to the essential elements of an offense in a single paragraph. The contention is meritless. The court adequately enunciated the elements of the offense, applied them to the facts as alleged in the indictment and instructed the jury on the necessity of proving each element of the offense beyond a reasonable doubt. 2 There is no requirement that the burden of proof should be applied by the court's charge to each element in a separate and distinct manner. A reading of the entire paragraph in the context of the charge as a whole requires that the jury find each and every element of the offense beyond a reasonable doubt. Additionally, the charge does not enlarge upon the allegations in the indictment. Compare Infante v. State, 612 S.W.2d 603 (Tex.Cr.App.); Perkins v. State, 528 S.W.2d 598 (Tex.Cr.App.); and Moore v. State, 140 Tex.Cr.R. 482, 145 S.W.2d 887. See also Sifford v. State, 511 S.W.2d 526 (Tex.Cr.App.).

PART III

Appellant next asserts that the trial court abused its discretion in overruling his motion for change of venue. Appellant contends that he could not obtain a fair trial in Kimble County because of vicious and false rumors that were circulating in the area. This contention is not supported by the record.

Appellant's motion for change of venue was properly accompanied by affidavits, 3 which were controverted by the State. 4 The filing of the controverting affidavits raised an issue of fact which was decided adversely to appellant when his motion was overruled following a hearing on the issue. McManus v. State, 591 S.W.2d 505 (Tex.Cr.App.); Demouchette v. State, 591 S.W.2d 488 (Tex.Cr.App.). When the trial court is presented with conflicting evidence, appellant must demonstrate an abuse of discretion on appeal. Brandon v. State, 599 S.W.2d 567 (Tex.Cr.App.); Von Byrd v. State, 569 S.W.2d 883 (Tex.Cr.App.); Freeman v. State, 556 S.W.2d 287, cert. den., 434 U.S. 1088, 98 S.Ct. 1284, 55 L.Ed.2d 794. The test to be applied is whether outside influences affecting the community climate of opinion as to a defendant are inherently suspect. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600; McManus, supra; Adami v. State, 524 S.W.2d 693 (Tex.Cr.App.); Morris v. State, 488 S.W.2d 768 (Tex.Cr.App.). Clearly, this standard does not require that jurors be totally ignorant of the facts and issues and "... scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case." Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751; Adami, s...

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