Johnson v. State

• Decision Date: 07 October 1987
• Docket Number: No. 094-86,094-86
• Citation: 739 S.W.2d 299
• Parties: Samuel Richard JOHNSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 299

739 S.W.2d 299

Samuel Richard JOHNSON, Appellant, v. The STATE of Texas, Appellee.

No. 094-86.

Court of Criminal Appeals of Texas,

En Banc.

Oct. 7, 1987.

State's Motion for Rehearing Denied Nov. 4, 1987.

Douglas M. O'Brien (Court appointed on appeal only), Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Kathlyn Giannaula, Terry G. Wilson & Richard Anderson, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellant was convicted by a jury of the offense of aggravated kidnapping under V.T.C.A. Penal Code, § 20.04(a)(1). The trial court assessed punishment at fifty years confinement in the Texas Department of Corrections.

In his only ground of error on appeal to the Fourteenth Court of Appeals appellant complained that the trial court erred in refusing to respond to his trial objection that the jury charge failed "to allege the specific acts that the State is relying on to make him a party. It does not say depending on solicitation, encouragement, direction, aid or attempt to aid one Mr. Clifford in the commission of this offense." See V.T.C.A. Penal Code, § 7.02(a)(2). Though the State expressly invited the jury in its summation thus to find appellant guilty as a party to the offense, the court of appeals held in an unpublished opinion that any error in failing to apply the law of parties to the facts was harmless. Johnson v. State, 702 S.W.2d 691 (Tex.App.--Houston [14th] 1985). The court of appeals found "[t]here is a reasonable inference that appellant was one of the two male guards who actually restrained the complainant[,]" and thus, that the evidence supported a jury finding that appellant was guilty as a primary actor. Rather than relying on our opinion in Govan v. State, 682 S.W.2d 567 (Tex.Cr.App.1985), as direct authority in support of its holding, however, the court of appeals cited our subsequent opinion in Watson v. State, 693 S.W.2d 938 (Tex.Cr.App.1985), for the proposition that the jury charge given actually "benefits appellant[,]" in that it "simply increased the [S]tate's burden with respect to appellant's culpability."

In his petition for discretionary review appellant now challenges the court of appeals' conclusion that the charge given actually inured to his benefit, and continues to insist that under Jaycon v. State, 651 S.W.2d 803 (Tex.Cr.App.1983) and Apodaca v. State, 589 S.W.2d 696 (Tex.Cr.App.1979), he was entitled to a charge adequately applying the law of parties to the facts of the offense. We granted appellant's petition in order to determine whether the court of appeals has rendered a decision that conflicts with applicable decisions of this Court. Tex.R.App.Pro., Rule 200(c)(3).

I.

At approximately 1:30 p.m. on the afternoon of February 23, 1984, Marjorie Lemieux was accosted by a single masked assailant in the driveway of her home in Houston. Her wrists and ankles were bound with tape, a pillowcase was secured over her head, and she was placed under a carpet in the back seat of her own Jaguar and driven away. For the next 27 hours two men, one her original abductor and the other a man with what she described as a "Tex-Mex" accent, drove her around in the Jaguar, occasionally together but usually singly, in shifts of three to four hours. Between shifts the car would stop at a rendezvous point, where the complainant had a distinct sense that other people were present--in fact, her original abductor told her there were four people there in a van, two women and two men, and he "insinuated" that "these people were in control of what was going on, that he was following orders." Contrary to the finding of the court of appeals, there is no indication that either of complainant's two "guards" was appellant.

Sometime between 8:00 and 10:00 a.m. on the morning of February 24th, while the man with the "Tex-Mex" accent was driving, yet a third man got into the Jaguar as it sat parked in some dark, presumably covered area. This man refused to talk to complainant, but he had a persistent cough which set him apart from the others. For the next 45 minutes the third man got in and out of the car, apparently conducting ransom negotiations from a nearby telephone. At times when he was in the car, complainant could hear the sound of "a pencil writing on paper" coming from his side of the front seat.

Complainant's husband, Henry Lemieux, had been contacted by telephone around 3:30 p.m. on the 23rd at his place of business. The caller demanded a $200,000 ransom. Lemieux immediately notified the police and also the F.B.I., who installed a recording device in his home telephone. Over the next 24 hours eight calls involving ransom negotiations, first from a male voice and later from what sounded like a female voice, were recorded. The first voice was shown to belong to one Harry Arnold Clifford. Appellant's sixteen year old girlfriend identified the second as appellant's imitation of a female voice, which she had heard on many occasions. On the afternoon of the 24th, several more calls were placed to designated public telephones, but these calls could not be recorded. The last of these calls involved a third, once again male voice. From listening to appellant speak in the courtroom, Lemieux was able to identify this third voice as his also.

Lemieux was instructed to place the ransom money in a van which he owned, and to leave the van parked at the Airport Holiday Inn. This was accomplished by about 5:00 p.m., and complainant was set free. The van was subsequently stopped a short distance from the motel, and its sole occupant, Clifford, was arrested. Officers recovered a gray canvas bag, which together with some of its contents, had been taken from complainant's Jaguar. ¹ Among the items found in the bag was a notepad belonging to complainant, on which both appellant's and Clifford's fingerprints were found. A documents examiner for the Houston Police Department found "definite indications" some of the writing on the pad, relating to the kidnapping and ransom demands, was in appellant's handwriting. On the pad was a reference to "Peggy," which was shown to be a fictitious name for appellant. Complainant testified this writing had not appeared on the notepad prior to her abduction. Additionally, half a dozen pages of looseleaf notebook paper which again displayed appellant's fingerprints and handwriting were discovered in Clifford's pocket.

Appellant's fingerprints were also obtained from a coke bottle in Clifford's car, which had been left in the airport parking lot at about 4:30 a.m. on the morning of February 24th.

During its final argument the State emphasized appellant's various connections to Clifford. It was also asserted that appellant had been the man with the cough who had been in and out of the Jaguar for 45 minutes on the morning of February 24th, composing the messages that were later found in the van. Finally it was stressed that appellant's voice was identified as that of one of the ransom negotiators. This, it was urged, provided direct evidence of appellant's guilt as a party to the offense:

"... that's not circumstantial evidence. That's direct examination [sic: evidence?] under the law. There is no need to remove any other reasonable hypothesis.

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"I submit, ladies and gentlemen, we have proved to you beyond a reasonable doubt, any doubt at all, that [appellant] participated in this as a party in the kidnapping of Mrs. Lemieux." ²

Because any evidence that appellant personally "secreted" or "held" complainant, see V.T.C.A. Penal Code, § 20.01(2)(A), was in fact purely circumstantial, it appears the State preferred that the jury proceed to verdict on a theory that appellant was criminally responsible as a party to the conduct of others, particularly Harry Arnold Clifford.

II.

In Watson v. State, supra, this Court concluded it was error to have charged the jury that the defendant could be found guilty of burglary of a habitation "acting either alone or as a party to the offense," because we found no support in the record for a jury verdict that defendant acted as a primary actor in the entry of the premises. Review of the jury argument showed "the State was proceeding solely on a theory that [defendant] was guilty as a party." Id., at 941. Nevertheless the Court found this error harmless under the "some harm" standard of Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), relating to error which is preserved by timely objection. Noting that a charge on the law of parties normally benefits the State inasmuch as it "enlarges a defendant's criminal responsibility[,]" the Court found that "in the converse, a charge requiring the jury to find that a defendant acted alone increases the State's burden and thus benefits the defendant." 693 S.W.2d at 941-42. ³

Simply put, the decision in Watson cannot stand as authority, direct or analogous, for a finding of harmless error in the instant cause. The court of appeals seems to have reasoned that, because in its view there was evidence appellant was guilty as a primary actor, any reference to the law of parties in the charge was superfluous and could only have operated to increase the State's burden to appellant's advantage. However, addition of the law of parties will never increase the State's burden of proof. On the contrary, as Watson itself reiterated, submission of the law of parties under § 7.02(a)(2), supra, invariably makes it possible for the State to obtain a conviction on less than sufficient evidence to establish the accused actually committed an offense as otherwise defined in the Penal Code. In Watson the State could not have obtained conviction of defendant as a primary actor. It was therefore held that having required as an alternative to the theory of guilt as a party that the State actually establish his guilt as a primary actor could only have "...