Holladay v. State

• Decision Date: 07 May 1986
• Docket Number: No. 058-85,058-85
• Parties: Robert Lee HOLLADAY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 194

709 S.W.2d 194

Robert Lee HOLLADAY, Appellant, v. The STATE of Texas, Appellee.

No. 058-85.

Court of Criminal Appeals of Texas,

En Banc.

May 7, 1986.

Donald W. Rogers, Jr. (court appointed on appeal only), Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. and Rory C. Flynn, Gordon Dees and Winston E. Cochran, Jr., Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

TEAGUE, Judge.

Robert Lee Holladay, hereinafter referred to as the appellant, was charged by indictment and convicted by the jury of committing the offense of murder while in the course of committing the offense of robbery, which is the offense of capital murder. See V.T.C.A., Penal Code, Section 19.03(a)(2).

Because the jury answered in the negative the question whether there was a probability that the appellant would commit criminal acts of violence that would constitute a continuing threat to society, the trial judge assessed the appellant's punishment at life imprisonment. See Art. 37.071(b)(2), V.A.C.C.P.

On direct appeal, the appellant did not challenge the sufficiency of the evidence. It is therefore sufficient for our purposes to only state that the facts of this cause reflect that Paul Joehlin met his untimely death when his neighbors, the appellant, Beverly Glock, Michael Keane, and Michael Kaiser, while in the course of robbing him, stabbed him many times in the chest, throat and lungs with a knife and a two-pronged meat fork.

The Houston First Court of Appeals, relying upon this Court's decisions of County v. State, 668 S.W.2d 708 (Tex.Cr.App.1984), and Fortenberry v. State, 579 S.W.2d 482 (Tex.Cr.App.1979), as authority, sustained the appellant's sole ground of error, that "The trial court erroneously overruled Appellant's objection to the Court's charge at the guilt phase of the trial which pointed out that the Court inadequately instructed the jury on the law with regard to accomplice testimony in capital murder cases," and reversed the trial court's judgment and sentence. See Holladay v. State, 682 S.W.2d 434 (Tex.App.--Houston [1st] 1985).

This Court held in both County and Fortenberry, supra, that if a conviction for the offense of capital murder may be based upon testimony of an accomplice witness, and the defendant requests an instruction that the witness' testimony must be corroborated as to the specific elements that make the crime of murder capital murder, the trial judge is required to give the instruction. In this instance, the record clearly reflects that the appellant's trial counsel timely and properly objected to the trial judge's refusal to include the above instruction in the charge to the jury.

We granted the State's petition for discretionary review in order to make the determination whether the County and Fortenberry, supra, line of cases is still viable. We find that it is not, will expressly overrule those cases to the extent of any conflict with this opinion, and will reverse the judgment of the court of appeals and affirm the judgment of the trial court.

The legal terms "accomplice" and "accomplice witness" are not specifically defined in the present Penal Code, which abolished all traditional distinctions between accomplices and principals. See V.T.C.A., Penal Code, Section 7.01(c). Today, the term "accomplice" includes all participes criminis, but those persons are now simply called "parties" to the offense. In light of the changes that the Legislature made in this part of the law when it enacted the present Penal Code, the term "accomplice witness" should be given a broad meaning. Easter v. State, 536 S.W.2d 223, 227, n. 4 (Tex.Cr.App.1976). Also see Williams v. State, 53 Tex.Cr.R. 396, 399, 110 S.W. 63, 64 (Tex.Cr.App.1908); Singletary v. State, 509 S.W.2d 572 (Tex.Cr.App.App.1974); Wade v. State, 367 S.W.2d 337 (Tex.Cr.App.1963); Orr v. State, 124 Tex.Cr.R. 252, 61 S.W.2d 490 (Tex.Cr.App.1933); Williams v. State, 53 Tex.Cr.R. 396, 110 S.W. 63 (1908); McQuarrie, "CRIMINAL PROCEDURE--Evidence--Accomplice Testimony--Testimony of Accessory After the Fact Need Not Be Corroborated," Case Note: 8 St. Mary's Law Journal 381 (1976/1977).

In this instance, without objection, the trial judge defined the legal term "accomplice" as follows: "An accomplice, as that term is here used, means any person connected with the crime charged." We find that this definition comports with the usual and ordinary meaning that is given that term, which is "one who knowingly, voluntarily and with common intent unites with the principal offender in the commission of the crime." Black's Law Dictionary 16 (1979 edition). By the very definition of the word "accomplice", such a person who testifies for the prosecution is infamous and his testimony is considered so untrustworthy a conviction should not be based solely upon that testimony. Because such a witness is usually deemed to be corrupt, his testimony is always looked upon with suspicion. See Eckert v. State, 623 S.W.2d 359 (Tex.Cr.App.1981); Hoyle v. State, 4 Tex.App. 239 (1878); Greenleaf on Evidence (16th edition 1899); Greenleaf on Evidence (1858 edition); Phillips' Treatise on Evidence (1849 edition); VII Wigmore on Evidence, Section 2056 (1978 edition).

Our Legislature, in enacting the provisions of Art. 38.14, V.A.C.C.P., which embody that statute's precursors of 1856, 1879, 1895, 1911, and 1925, requires that before a conviction may rest upon an accomplice witness' testimony, that testimony must be corroborated by independent evidence tending to connect the accused with the crime. Thus, the Legislature has made the above beliefs law.

Kaiser testified for the State in this cause. Because Kaiser had been charged with committing the same offense as the appellant, as well as admitting being one of the parties primarily responsible for Joehlin's death that occurred during the commission of a robbery, he was an accomplice witness as a matter of law. See Harris v. State, 645 S.W.2d 447 (Tex.Cr.App.1983); Kerns v. State, 550 S.W.2d 91 (Tex.Cr.App.1977); Hendricks v. State, 508 S.W.2d 633 (Tex.Cr.App.1974). Also see the cases collated under West criminal law key number 507(1).

The question that we must decide is just how detailed an instruction in a capital murder case, where the State relies upon the testimony of an accomplice witness to establish its case against the accused, must be given the jury in order to satisfy the provisions of Art. 38.14, supra, which provides:

A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and corroboration is not sufficient if it merely shows the commission of the offense.

The State argues that "Nowhere in Texas Code Crim.Pro. art. 38.14 (Vernon 1965) is it required that a particular element or group of elements be corroborated before a defendant may be convicted [of capital murder] on the basis of accomplice testimony. All that is required [under Art. 38.14] is that there be other evidence which tends to connect the defendant with the offense. ¹ Taken to the extreme, the Court's analysis would apply to an offense in which there is an aggravating element. There is no legislative justification for this approach." As previously noted, there is no definition in the Penal Code for the term "accomplice", nor is there one in the Code of Criminal Procedure. We agree in principle with the State's arguments.

The record reflects that prior to the time that the trial judge read the charge to the jury, each juror was given a copy of the charge so that he could not only hear the judge read the charge but could also visually see what the judge was reading, which procedure we find is to be highly commended to the members of our trial judiciary.

The trial judge instructed the jury that Kaiser was an accomplice if an offense was committed.

She then instructed the jury that "[it could not] convict the Defendant upon [Kaiser's] testimony unless [it] first believe[d] that his testimony is true and shows that the Defendant is guilty as charged, and then [it could not] convict the Defendant upon said testimony unless [it] further believe[d] that there [was] other testimony in the case, outside of the evidence of [Kaiser] tending to connect the Defendant with the offense committed, if [it found] that an offense was committed, and the corroboration [would not be] sufficient if it merely show[ed] the commission of the offense, but it must tend to connect the Defendant with its commission, and then from all of the evidence [the jury had to] believe beyond a reasonable doubt that the Defendant [was] guilty of the offense charged against him." We find that this charge is patterned after the one found in McClung, Jury Charges for Texas Criminal Practice, pp. 225-226 (Rev.ed.1985).

The jury was also instructed on the offense of capital murder and was told that one of the ways that a person commits the offense of capital murder is if he commits the offense of murder under V.T.C.A., Penal Code, Section 19.02(a)(1), while in the course of committing or attempting to commit the offense of robbery. See V.T.C.A., Penal Code, Section 19.03(a)(2).

The jury was further instructed on the offense of murder and was told that murder occurs if an individual intentionally or knowingly causes the death of another individual. V.T.C.A., Penal Code, Section 19.02(a)(1).

The jury was also instructed on the offenses of robbery and attempted robbery and given the definition of the term "bodily injury." They were told that the offense of robbery occurs if an individual, in the course of committing the offense of theft, and with intent to obtain or maintain control of the property, intentionally, knowingly, or recklessly causes bodily injury to another. V.T.C.A., Penal Code 29.02(a)(1). "Bodily injury" was defined to mean physical pain,...