Fortenberry v. State

• Decision Date: 21 March 1979
• Docket Number: No. 60206,60206
• Citation: 579 S.W.2d 482
• Parties: Larry Carnell FORTENBERRY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 482

579 S.W.2d 482

Larry Carnell FORTENBERRY, Appellant, v. The STATE of Texas, Appellee.

No. 60206.

Court of Criminal Appeals of Texas, En Banc.

March 21, 1979.

Rehearing Denied May 2, 1979.

Joe L. Cox and Steve L. Hurt, Plainview, for appellant.

John R. Hollums, Dist. Atty., Floydada, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

ODOM, Judge.

This is an appeal from a conviction for capital murder. V.T.C.A., Penal Code Sec. 19.03. After the jury answered all punishment stage issues in the affirmative, the penalty was fixed at death. Art. 37.071, V.A.C.C.P. This case was tried in Hale County on a change of venue from Motley County.

In his 53rd and 54th grounds of error, appellant contends the trial court submitted an erroneous charge on the law requiring corroboration of an accomplice witness, over his objection.

Appellant was charged with the capital murder of Jalmar "Jinks" Wilson, the sheriff of Motley County, under Sec. 19.03(a)(1), supra:

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

"(1) the person murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman; . . ."

Article 38.14, V.A.C.C.P., provides:

"A conviction cannot be had upon the testimony of an accomplice witness 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 gravamen of capital murder as alleged against appellant in this case is that the deceased was a peace officer acting in the lawful discharge of an official duty at the time he was killed, and that appellant knew he was a peace officer. The state's primary witness was Stacy Carter, who acted with appellant in the commission of the offense, and who had pled guilty to the lesser included offense of murder and agreed to testify for the state at appellant's trial as part of a plea bargain. Carter gave the only direct evidence that appellant knew the sheriff was a peace officer. At the time he was shot, Sheriff Wilson was not wearing a distinctive uniform, a badge, or a gun. The car he was driving displayed no official emblems or words, and was not equipped with lights on top, although there were red lights behind the front grill. The visibility of these lights was in dispute at trial. The passenger who was with the sheriff at the time of the shooting was unable to testify to any conversation by which the sheriff might have informed appellant of his authority.

On the matter of corroboration of the accomplice witness' testimony, the trial court first instructed the jury generally on the law of Art. 38.14, supra. It then applied the law to the facts in this language:

"The witness, Stacy Albert Carter, is an accomplice, if an offense was committed, and you cannot convict the Defendant upon his testimony unless you first believe that his testimony is true and shows that the Defendant is guilty as charged, and then you cannot convict the Defendant upon said testimony unless you further believe that there is other testimony in the case, outside of the evidence of the said Stace (sic) Albert Carter tending to connect the Defendant with the offense committed, if you find that an offense was committed, 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, and then from all of the evidence you must believe beyond a reasonable doubt that the Defendant is guilty of the offense charged against him."

Appellant timely objected to this portion of the court's charge, pointing out that it did not direct the requirement of corroboration to the specific elements that render the offense a capital crime. These are appellant's two objections on this issue that were overruled by the trial court:

"The Defendant objects to the charge as a whole for the reason that the same does not require the jury to find that the accomplice testimony has been corroborated in each element of the offense of capital murder, that is, that the deceased was a peace officer acting in the lawful discharge of an official duty and that this Defendant knew that the deceased was a peace officer."

"The Defendant objects to the charge as a whole and particularly the three paragraphs contained on page 4 of the said charge in that the same does not require the corroboration of the testimony of the accomplice in this case as to the elements of the case that elevate murder to capital murder, that is, the allegation of 'peace officer acting in the discharge of an official duty and knowledge of this Defendant that the deceased was a peace officer.' And the Defendant objects and excepts to the charge of the court contained in paragraph 4 thereof because it does not in any way differentiate the charge of accomplice testimony as to the allegations of murder and capital murder, and is calculated to mislead and confuse the jury as to what corroboration is necessary and whether there is in fact corroboration of the offense of capital murder, as to whether there is corroboration of the allegation in the indictment of acting in the discharge of an official duty and whether there is corroboration of the accomplice that the Defendant knew the deceased was a peace officer."

In its reply to these two grounds of error the state cites one case for the proposition that it is not necessary to corroborate an accomplice witness on all points, and that the only evidence required is that which would be sufficient to tend to connect the accused with the crime charged.

Although it is the general rule that the "usual" charge on Art. 38.14 is sufficient, that is not always the case. For example, in Warren v. State, 514 S.W.2d 458, the Court recognized the different requirement that applies to prosecutions for receiving and concealing stolen property. In that case the Court wrote:

"Althoug...