Ganesan v. State

• Decision Date: 28 February 2001
• Docket Number: No. 03-00-00125-CR,03-00-00125-CR
• Citation: 45 S.W.3d 197
• Parties: (Tex.App.-Austin 2001) Apparajan Ganesan, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

Page 197

45 S.W.3d 197 (Tex.App.-Austin 2001)

Apparajan Ganesan, Appellant v. The State of Texas, Appellee

No. 03-00-00125-CR

Texas Court of Appeals, Austin.

February 28, 2001

Rehearing Overuled May 31, 2001.

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT NO. 0995324, HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Justices Kidd, Yeakel and Powers^*

Mack Kidd, Justice

A jury convicted appellant Apparajan Ganesan on two counts of solicitation to commit murder. See Tex. Penal Code Ann. §§ 15.03, 19.02 (West 1994). The jury found that appellant solicited Reda Sue Prier to kill Sudha Vallabhaneni, appellant's wife, and Amy Wright, the lawyer representing Vallabhaneni in her divorce action. The jury assessed punishment for each count at imprisonment for ten years, to be served concurrently. We will affirm the conviction on one count, but reverse and render an acquittal on the other.

SUFFICIENCY OF EVIDENCE

Proof of Solicitation

In his first issue, appellant contends the State did not prove that he engaged in criminal solicitation as defined in the penal code and alleged in the indictment. The penal code provides that a person commits an offense if, with intent that a capital or first degree felony be committed, he "requests, commands, or attempts to induce another to engage in specific conduct that, under the circumstances surrounding his conduct as the actor believes them to be, would constitute the felony or make the other a party to its commission." Id. § 15.03(a). The two counts of the indictment alleged that appellant, with the requisite intent, requested Prier "to engage in specific conduct, to wit: to kill [the complainant]" under circumstances that "would have made Reda Sue Prier a party to the commission of murder." It is undisputed that appellant did not ask Prier to kill either Vallabhaneni or Wright. Instead, Prier testified that appellant repeatedly asked her to find someone to kill them. Appellant contends that Prier's testimony does not reflect a criminal solicitation, but merely a noncriminal "solicitation of solicitation."

In Johnson v. State, 650 S.W.2d 784, 787 (Tex. Crim. App. 1983), the indictment alleged that the defendant "attempted to induce Roger Bryant to employ another" to commit a murder. The defendant argued that asking Bryant to employ another to commit murder was a solicitation of a solicitation, and therefore not an offense under the terms of penal code section 15.05. See Tex. Penal Code Ann. § 15.05 (West 1994) (solicitation of a chapter 15 preparatory offense is not an offense). The court rejected this argument. Citing the last phrase in section 15.03(a), the court noted that the act solicited must either constitute the intended felony or make the person solicited a party to its commission. Johnson, 650 S.W.2d at 787. The act solicited by the defendant, Bryant's employment of another to commit murder, would make Bryant a party to the murder. Thus, the defendant's solicitation of Bryant constituted an offense under section 15.03. Id.

If, in the cause before us, Prier had arranged for someone else to kill appellant's wife and her attorney as she testified that appellant requested and attempted to induce her to do, Prier would have been a party to the murders. See Tex. Penal Code Ann. § 7.02(a)(2) (West 1994). Appellant's contention that Prier's testimony does not show that he committed a criminal solicitation under section 15.03 is without merit. Issue one is overruled.¹

Corroboration of Solicitee

Appellant's further contends that Prier's testimony was not adequately corroborated. A person may not be convicted of criminal solicitation on the uncorroborated testimony of the person allegedly solicited and "unless the solicitation is made under circumstances strongly corroborative of both the solicitation itself and the actor's intent that the other person act on the solicitation." Tex. Penal Code Ann. § 15.03(b) (West 1994). Section 15.03(b) is analogous to the accomplice witness statute, and the same test for evaluating the sufficiency of the corroboration is used. Richardson v. State, 700 S.W.2d 591, 594 (Tex. Crim. App. 1985); see also Tex. Code Crim. Proc. Ann. art. 38.14 (West 1979). Therefore, we must eliminate Prier's testimony from consideration and determine whether there is other evidence tending to connect appellant to the crime. Richardson, 700 S.W.2d at 594. The corroboration must go to both the solicitation and the alleged intent, but need not be sufficient in itself to establish guilt. Id. We view the corroborating evidence in the light most favorable to the verdict. Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994); Utsey v. State, 921 S.W.2d 451, 453 (Tex. App. Texarkana 1996, pet. ref'd).

Appellant is an engineer who had designed a computer chip that he hoped to market in partnership with a Swiss corporation. In November 1996, one month after Vallabhaneni filed for divorce, appellant liquidated his brokerage account and ordered that the proceeds, over one million dollars, be wired to a Swiss bank account. Before the money could be moved, however, his wife obtained a restraining order and the money was deposited in the registry of the court. In late 1997 or early 1998, appellant filed for bankruptcy. Vallabhaneni, as a claimant to the funds, was scheduled to be deposed in the bankruptcy proceeding in November 1998. The alleged solicitations for the murders of Vallabhaneni and Wright took place in September and October 1998.

The record reflects that appellant believed that his wife's actions were damaging his ability to market the computer chip. During a telephone conversation with Vallabhaneni in January 1997, which she tape recorded on Wright's advice, appellant said that her divorce action was "making sure that this product will die." Appellant went on, "Let me tell you this. I don't care what you do. If this product dies, one of us will be dead, yeah, I promise you that." Vallabhaneni replied, "What do you mean, you'll kill me?" Appellant answered, "I will kill myself or I'll kill you or I'll kill both of us or you will kill yourself. That much I can tell you. If . . . this product dies, one of us will die. I know that. Because I won't be able to live with the shame. Maybe you will be able to live with it."

In Richardson, the defendant was convicted of soliciting the murder of a man who was scheduled to testify against him in a prosecution for theft. The court of criminal appeals stated that the "theft charge and [the victim's] actions with respect to it suggest[] the existence of an agreement [between the defendant and the alleged solicitee]." Id. at 595. Applying the reasoning of Richardson, appellant's belief that his wife's litigation threatened to derail a potentially lucrative business opportunity was evidence of motive that tends to support Prier's testimony that appellant solicited the murders of his wife and her attorney. While evidence of motive is insufficient in itself to corroborate an accomplice, it may be considered with other evidence to connect the accused with the crime. Leal v. State, 744 S.W.2d 112, 127 (Tex. Crim. App. 1988).

Appellant's statement that "one of us will be dead" if the chip design did not succeed adds some additional support to the existence of the solicitation of Vallabhaneni's murder. In his brief, appellant dismisses his remarks during the telephone conversation as nothing more than hyperbole, and notes that the conversation took place twenty months before the alleged solicitation. But viewing the evidence in the light most favorable to the jury's verdict, as we must, we cannot disregard the threat implicit in appellant's statement.

Appellant was arrested in May 1997 for violating a protective order obtained by Vallabhaneni. While in the Travis County Jail, he met James Hammonds, who was awaiting his release on bail following an arrest for theft. Hammonds testified that appellant told him "about how his wife and the system and the judge had destroyed his life and his business and how he was losing everything." According to Hammonds, appellant asked, "Do you know of anyone, or can you take care of my wife for me?" When Hammonds replied, "Excuse me?" appellant said, "You know what I mean." Hammonds said that this "really scared me" and that he thought he was "being set up by the cops." Hammonds refused to give appellant his address but gave appellant a telephone number where he could be reached, not expecting appellant to call.

A few weeks later, however, appellant called Hammonds and asked if he "remember[ed] the conversation in the cell that we had." Appellant added, "I need to talk to you about this again. We need to talk about this." Still fearing that he was being tricked, Hammonds told appellant his upcoming trial date and suggested that they meet at the courthouse. After giving the matter further consideration, Hammonds contacted the police and reported what appellant had said. Subsequently, under the supervision of a Texas Ranger, Hammonds (who had obtained appellant's telephone number by means of caller ID) called appellant while being recorded. When Hammonds attempted to talk about their previous conversations, appellant "started back-peddling. He started trying to get out of the conversation. He didn't want to talk about that." The call ended and the police did not pursue the matter to Hammonds's knowledge.

That appellant solicited Hammonds to kill his wife, albeit sixteen months before the alleged solicitation of Prier, tends to corroborate Prier's testimony both as to the solicitation itself and appellant's intent that Prier act on the solicitation. See Varvaro v. State, 772 S.W.2d 140, 143-44 (Tex. App. Tyler 1988, pet. ref'd). But Hammonds's testimony corroborates Prier only with respect to the solicitation of Vallabhaneni's murder. It does not tend to connect appellant to the alleged solicitation of...