Goff v. State

• Decision Date: 22 May 1996
• Docket Number: No. 71404,71404
• Citation: 931 S.W.2d 537
• Parties: David Lee GOFF, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 537

931 S.W.2d 537

David Lee GOFF, Appellant v. The STATE of Texas, Appellee.

No. 71404.

Court of Criminal Appeals of Texas En Banc.

May 22, 1996.

Rehearing Denied Oct. 16, 1996.

David Richards and Bob Ford, Fort Worth, for appellant.

John A. Stride, Asst. Dist. Atty. Fort Worth and Robert A. Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MEYERS, Judge.

In November 1991, appellant was convicted by a jury of the offense of capital murder, namely murder in the course of kidnapping or burglary under Tex. Penal Code, § 19.03(a)(2). After the jury affirmatively answered the submitted special issues, the trial court sentenced appellant to death. Tex.Code.Crim.Proc.Ann. art. 37.071(b). ¹ Appeal to this Court is automatic. Article 37.071(h). Appellant raises twenty-three points of error. We will affirm.

Appellant does not challenge the sufficiency of the evidence. However, a brief summary of the facts will be helpful in resolving the points of error.

Viewed in the light most favorable to the verdict, the evidence at trial showed: Appellant and his accomplice, Craig Ford, ² were dating a mother and her daughter, respectively. Because of the similarity in their names, the women were referred to by age as Big Mary and Little Mary. They all resided in an apartment in Fort Worth. ³ At approximately 10:30 p.m. on September 1, 1990, Ford was present at the apartment and testified that he was awaiting transportation to his mother's house. Appellant arrived and informed Ford he had a ride and invited Ford to go with him.

Ford followed appellant to the parking lot, and they both got into a dark-blue panel van. The van contained two seats, the driver and passenger seat, and a mattress on the floor of the rear of the van. Ford sat in the rear and appellant sat in the passenger seat. The driver's seat was occupied by the victim. Once inside the van, appellant introduced Ford to the victim.

On what Ford believed was the way to his mother's house, appellant asked the victim to pull over so he could relieve himself. The victim acquiesced, and appellant got out of the van. When he reentered the van, appellant pulled out a pistol, pointed it at the victim, and told him to shut up or he would kill him. Appellant grabbed the victim, threw him onto the mattress, and handcuffed the victim's hands behind his back as he pleaded for his life. Appellant then pushed Ford towards the driver's seat and told him to drive. At some point, the victim was also gagged and tied with a rope.

Ford was instructed to find a dark street, so he drove for several miles. Eventually, Ford turned down Wilbarger Street in Fort Worth. As he turned the corner, he heard a single shot in the back of the van. Ford pulled over in a secluded wooded area. Appellant exited on the passenger side, then went around and opened the rear doors of the van. Ford unsuccessfully attempted to assist appellant in removing the body from the van. As appellant dragged the body into the wooded area, Ford decided to flee down Wilbarger Street.

After disposing of the body, appellant returned to the van and went after Ford. When he caught up with Ford, appellant again drew his gun and ordered Ford to return to the van and drive. Ford agreed. The two returned to their girlfriends' apartment. On the way, appellant discarded the handcuffs he had removed from the body in an abandoned field. Ford threw the keys into another field. The handcuffs were later recovered.

Angela Johnson, another of Big Mary's daughters, testified that she was at the apartment when appellant and Ford left and later returned. Upon their return, Johnson testified that appellant had blood on his pants and the lower part of his shirt. Ford told Johnson that they had been in a fight with some guys. There was no visible blood on Ford's clothes. As the evening progressed, Ford went in and out of Big Mary's room to apparently converse with appellant. Further, both appellant and Ford paced around the home looking out the windows, both stepped out of the apartment for a moment but returned shortly, and they conversed in secretive tones throughout the night.

Later that evening or early morning, Johnson and her mother left the apartment for some cigarettes. At appellant's request, they discarded a clear plastic grocery bag which contained appellant's blood-stained clothes ⁴ in a drainage ditch. The bag was later recovered by police. Further, Matthew Owens, a neighbor, testified that appellant asked him to burn a van parked nearby and told Owens not to worry about what he saw inside. Owens declined. However, a partially burnt rag was found next to the van when it was located by the police. Several days later when Johnson heard the news reports of the victim's death she called the police and informed them of appellant's actions.

On September 4, 1990, the victim's body was found gagged and face down in a field in the 6000 block of Wilbarger. Dr. Nizzam Peerwani, Tarrant County Chief Medical Examiner, testified that the victim died from a single .25-caliber gunshot wound to the head. The body had also sustained other injuries. Peerwani noted that there was a ligature impression encircling the victim's neck and an indentation in the facial tissue from the gag.

In his first point of error, appellant contends that the trial court erred in submitting an instruction on the law of parties in the guilt/innocence charge because there was no evidence to support it. Alternatively, in his second point of error, he argues that even if a parties charge was appropriate, the trial court erred by failing to limit it to the facts of the case. And, in his third point of error, he complains that the trial court erroneously overruled his motion for new trial on the basis of the improper charge.

"A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both." Tex. Penal Code, § 7.01(a). Therefore, under the law of parties, the State is able to enlarge a defendant's criminal responsibility to acts in which he may not be the principal actor. Romo v. State 568 S.W.2d 298, 300 (Tex.Crim.App.1977) (opinion on rehearing). Because our penal code generally criminalizes conduct of individuals, the State is required to properly instruct the jury if it proceeds upon a parties theory. ⁵ Where there is no charge on the law of parties a defendant may only be convicted on the basis of his own conduct. See Walker v. State, 823 S.W.2d 247, 248 (Tex.Crim.App.1991), cert. denied, 503 U.S. 939, 112 S.Ct. 1481, 117 L.Ed.2d 624 (1992) (absence of law of parties in application paragraph permits jury to convict defendant only on his individual conduct).

In the instant case, the jury was charged in accordance with sections 7.01 and 7.02(a)(2) of the Texas Penal Code as follows:

Our law provides that a person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.

Each party to an offense may be charged with the commission of the offense. A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, or encourages, or directs, aids or attempts to aid the other person to commit the offense. Mere presence alone will not constitute one a party to an offense.

* * * * * *

Now, if you find from the evidence beyond a reasonable doubt that [the Defendant].... did then and there intentionally cause the death of [the victim], by shooting him with a deadly weapon, to-wit: a firearm, and [the Defendant] was then and there in the course of committing or attempting to commit the offense of kidnapping of [the victim,].... or by acting with the intent to promote or assist the commission of the offense, he solicited, encouraged, directed, aided or attempted to aid Craig Edwin Ford to commit the offense; or

[same paragraph except relating to the accompanying-offense of robbery], then you will find the Defendant guilty of the offense of capital murder.

The test for determining when an instruction should be submitted to the jury on the law of parties was set forth in McCuin v. State, 505 S.W.2d 827 (Tex.Crim.App.1974):

Where the evidence introduced upon the trial of the cause shows the active participation in the offense by two or more persons, the trial court should first remove from consideration the acts and conduct of the non-defendant actor. Then, if the evidence of the conduct of the defendant then on trial would be sufficient in and of itself, to sustain the conviction, no submission of the law of [parties] is required ...

On the other hand, if the evidence introduced upon the trial of the cause shows, or raises an issue, that the conduct of the defendant then upon trial is not sufficient, in and of itself, to sustain a conviction, the State's case rests upon the law of [parties] and is dependent, at least in part, upon the conduct of another. In such a case, the law of parties must be submitted and made applicable to the facts of the case.

Id. at 830 (emphasis added); see also Brown v. State, 716 S.W.2d 939, 944 (Tex.Crim.App.1986) (McCuin test still viable means for determining when cause should be submitted to jury on law of parties). To determine whether appellant was a party to Ford's actions, the trial court may look to events before, during, and after the commission of the crime. Tarpley v. State, 565 S.W.2d 525, 529 (Tex.Crim.App.1978).

Although we note that "defendant as the principal actor" is the theory best supported by the evidence, we conclude that there was evidence to support the inference that appellant acted as a party to the offense. Throughout the guilt/innocence phase, appellant attempted to put forth evidence that Ford had possibly committed or at...