Helms v. State, 45542
| Decision Date | 28 March 1973 |
| Docket Number | No. 45542,45542 |
| Citation | 493 S.W.2d 227 |
| Parties | Billy Joe HELMS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Walter M. Sekaly, Everett Lord, Beaumont (by appointment), for appellant.
Tom Hanna, Dist. Atty., and John R. DeWitt, Asst. Dist. Atty., Beaumont, and Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
This appeal is taken from a conviction for the offense of murder with malice. Punishment was assessed at 35 years' confinement.
Appellant alleges five grounds of error.
On Sunday morning, May 4, 1969, an automobile occupied by white males was in a near collision with the black occupants of another vehicle. A short while later, the same two vehicles met again. Two white men got out of their automobile but only a brief confrontation ensued. Several blacks in the area began to chase the whites back into their automobile by throwing bottles and bricks. The whites shortly returned and gunfire began as their vehicle sped past. A woman in a nearby cafe was struck in the chest and subsequently died as a result of this wound.
An accomplice witness, a former wife of one of the defendants, testified that on May 4, 1969, four men, including appellant, departed in an automobile belonging to one of the defendants. She testified they were gone about an hour and then returned, bringing with them an additional person, a David Hanna. The men reported to her that they had some trouble with some Negroes. At this time, two of the defendants already had guns and while at this residence, two additional guns were acquired, one of which was given to appellant. (This latter weapon was later identified as the murder instrument.) The five men then again left for a short period of time. When they returned, they again spoke of trouble with Negroes, then departed. The witness soon thereafter received a phone call from one of the defendants, instructing her to get two guns from one of the bedrooms and dispose of them. The witness obeyed, throwing them into a nearby lake.
Appellant's first two grounds allege that there was insufficient evidence to support a finding that he was acting as a principal at the time the decedent was killed.
A witness for the State, Billy Williams, testified that he witnessed the shooting scene and observed the occupants of the automobile as it passed. On direct examination, the following colloquy occurred:
'A Yes, sir.
'Q Will you point them out, please?
'A Right there (pointing).
'Q Are you pointing to the man seated there at the end of the table?
'A Yes, sir.
'MR. HANNA (Prosecutor): Let the record reflect he has pointed out the defendant, Billy Joe Helms.
'Q You say the defendant was in that car?
'A Right.
'Q And were you able to see what, if anything he was doing?
'Q He was leaning down toward the dashboard?
'A Yes, sir.
'Q Did you see whether or not he had any weapon with him?
'A No, sir, I did not.
'Q Did you see any weapons at all?
'A No, sir, I didn't.'
Appellant contends that such testimony was in conflict with earlier testimony by Williams, given at the examining trial, and thus is insufficient to connect appellant as a principal. We have examined the testimony elicited at the examining trial and find that, on direct examination, Williams identified four persons, including appellant, as occupants of the car in question. On cross-examination, Williams stated that he could 'positively identify' only two of the occupants of the automobile, neither of which was appellant; however, Williams had just testified that 'that big fat one right there (pointing)' (a not-unreasonable description of appellant) was in the front seat of the car, on the right hand side.
Assuming, arguendo, that there was a conflict between Williams' testimony at the examining trial and at the trial, then that conflict went to the weight of his testimony rather than to the existence or the admissibility of the identification. The jury resolved any conflict against appellant, and chose to believe the trial testimony of Williams which placed appellant in the automobile at the time of the offense. See Hill v. State, 456 S.W.2d 699 (Tex.Cr.App.1970).
Appellant alternatively argues that there is no evidence that he actually fired the fatal shot. However, he was placed at the scene along with the other defendants, by Williams' testimony. The accomplice witness testified that the defendants told her of 'some trouble with some Negroes,' obtained weapons and all left in one automobile. They returned together, seemed uneasy and listened to newscasts about a black woman being shot. The fact that no one could testify as to who actually fired the fatal shot is of no consequence. The jury had before it sufficient evidence that appellant encouraged and aided the commission of the offense in order to convict him as a principal. Article 69, Vernon's Ann.P.C.
In his third ground of error, appellant contends...
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...are admissible, Denney v. State, 558 S.W.2d 467 (Tex.Cr.App.1977); Delgado v. State, 544 S.W.2d 929 (Tex.Cr.App.1977), Helms v. State, 493 S.W.2d 227 (Tex.Cr.App.1973), and they are admissible even though occurring out of the presence and hearing of the conspirator on trial. Lapp v. State, ......
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...the rifle. This conversation and this transaction were unquestionably in furtherance of the conspiracy and admissible. Helms v. State, 493 S.W.2d 227 (Tex.Cr.App.1973); Denny v. State, In his July 4th conversation with Richard, Joe said a woman, whom he did not name, had helped him murder t......
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...(1940). Each declaration or act of a co-conspirator up until the object of the conspiracy is complete is admissible, Helms v. State, 493 S.W.2d 227, 230 (Tex.Cr.App.1973), although it occurred out of the presence and hearing of the defendant. Saddler v. State, 167 Tex.Cr.R. 309, 320 S.W.2d ......
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...object of the conspiracy is completed: in this case, the murder of Kelley and the payoff to Spence. The state cites Helms v. State, 493 S.W.2d 227, 230 (Tex.Cr.App.1973); and Brown v. State, 576 S.W.2d 36, 41 (Tex.Cr.App.1979). The implication of this argument is that a conspiracy cannot be......