Kunkle v. State

• Decision Date: 18 June 1986
• Docket Number: No. 69501,69501
• Parties: Troy Albert KUNKLE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 435

771 S.W.2d 435

Troy Albert KUNKLE, Appellant, v. The STATE of Texas, Appellee.

No. 69501.

Court of Criminal Appeals of Texas,

En Banc.

June 18, 1986.

Certiorari Denied July 3, 1989. See 109 S.Ct. 3259.

Richard W. Rogers, III, Corpus Christi, for appellant.

Grant Jones, Dist. Atty. and Leslie Poynter, Asst. Dist. Atty., Corpus Christi, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MILLER, Judge.

This is an appeal taken from a conviction for capital murder. V.T.C.A. Penal Code, § 19.03. The death penalty was imposed after the jury answered affirmatively the special issues submitted under Art. 37.071, V.A.C.C.P. Appellant brings twelve grounds of error before this Court. We affirm.

Appellant's first eight grounds of error concern the laws regarding accomplice witnesses, whether one of the witnesses was an accomplice witness, and the trial court's charge to the jury on these matters. In order to dispose of these grounds, as well as other grounds raised by appellant, a brief recitation of the facts is necessary.

The record shows that on August 11, 1984, at approximately 6:00 p.m., appellant and his three co-defendants, Lora Lee Zaiontz, Russell Stanley and Aaron Adkins, left San Antonio to go to Corpus Christi. Appellant was 17 years old at the time of the offense. Tom Sauls, who was not indicted for any offense stemming from these activities, was also present. Sauls believed that the five were going to the beach to "party." All five individuals were under the influence of alcohol and L.S.D. at the time.

While en route to their destination, Stanley removed a loaded .22 caliber pistol from the glove compartment of the car, and fired it into the air while asking Adkins if he wanted to make money. Sauls told Stanley that "guns and acid don't mix," whereupon Stanley returned the gun to the glove compartment. Stanley removed the gun several other times.

Stanley and Adkins discussed committing robbery, and several times they slowed down to evaluate the chances of committing robbery upon the occupants of cars parked on the roadside. Although Sauls was within hearing distance of the discussions, he did not take part in them.

After arriving in Corpus Christi, the five drove to the beach. Appellant and Zaiontz, his girlfriend, kept to themselves while Stanley, Adkins and Sauls walked together and discussed robbing someone. Sauls was present, but did not contribute to the discussion.

The five left the beach and went to a convenience store to buy some beer. There, Stanley and Adkins robbed a man in a phone booth at gunpoint, and obtained seven dollars. Appellant and the other two persons remained in the car while the robbery took place, but could not see the actual robbery. Sauls did not participate in the robbery or share in its proceeds.

Next, the five left the convenience store and drove around looking for someone else to rob. They spotted Stephen Horton, the deceased, walking along the road. Adkins drove the car up beside Horton and Zaiontz asked Horton if he wanted a ride. Horton replied that he lived only a few blocks away, but was finally persuaded to enter the car. Horton got in the front seat, next to Zaiontz.

Stanley put a gun to the back of Horton's head and told him to give them his wallet. When Horton turned to look at Stanley, Zaiontz stuck her nails into the side of his face and told him to look forward. Appellant told Stanley to kill Horton, but Stanley refused because Stanley did not believe that a killing was necessary. Stanley just wanted to "beat [Horton's] ass." Appellant then took the gun away from Stanley, stuck it up against Horton's head and said, "We're going to take you back here and blow your brains out." Adkins drove the car behind a skating rink, and appellant shot Horton in the back of the head. They opened the car door, pushed the body out, and Zaiontz took Horton's wallet. After shooting Horton, appellant stated "another day, another death, another sorrow, another breath." ¹ Later, he also stated that the murder was beautiful.

After the murder, Sauls "freaked out on the whole thing and just sat there scared." Sauls stated that when he complained about the murder and said that they did not have to kill Horton, Stanley pointed the gun at Sauls' head and told him "[I]f you don't shut up, I am going to shoot you, too." Sauls stated that he "shut up, and ... just sat there and stared out the window the rest of the way home." The others acted as though nothing had happened as they drove back to San Antonio.

When they arrived in San Antonio, the five spent the night in the same place. The next day, they went to Canyon Lake. When asked why Sauls went with the others to the lake, he stated:

"Because I didn't--well, I thought it would be awful strange for me not to, because we did everything else together. It was sort of keeping an eye on me so I wouldn't go to the police."

Sauls also testified that he was afraid to call the police. He was later contacted by Austin police officers, and told them everything that happened. Sauls was never arrested or charged with any offense arising out of the murder.

1. WAS SAULS AN ACCOMPLICE WITNESS AS A MATTER OF LAW?

In his first ground of error, appellant contends that the trial court erred in refusing appellant's requested instruction to the court's charge on guilt or innocence that Tom Sauls was an accomplice witness as a matter of law. In support of his contention, appellant refers to the following evidence brought forth during trial. The record shows that Sauls knew about the robberies the others planned to commit but never protested prior to their commission. Sauls entered into discussions about the robberies and was "for it." ² After the robbery of the man in the phone booth, Sauls wanted to know how much money was obtained. Appellant's attorney asked Sauls, before Horton got into the car, whether he would have told the others to "cool it" if he had seen "police lights." Sauls responded that he would have. Last, Sauls knew that money from Horton's murder was used to buy the provisions for the lake outing.

Appellant contends that this evidence clearly establishes that Sauls was an accomplice as a matter of law. Therefore, the trial court committed reversible error when it refused to charge the jury in accordance with the evidence.

The State responds to appellant's contentions by asserting that the record is devoid of any evidence that Sauls committed an act to promote or assist the others in the commission of any offense. Stanley testified that Sauls did not participate in the murder, was simply present at the scene of the offense, did nothing to help the others murder and rob Horton, did not voice an opinion as to the offense, never handled Horton's wallet, never encouraged the others to commit the offense, and did not aid, solicit or help any of the others in the commission of the offense.

When Sauls took the stand, he stated that he thought they had gone to the beach to "party" instead of to rob people. He added that when he told the others his opinion, they told him to shut up. After the murder, Sauls stated that he "freaked out" over the incident. He stated that he did not encourage nor help the others rob anyone. When asked whether he served as a look-out during the murder, he stated "No." The State contends that this evidence shows that Sauls was not an accomplice as a matter of law or as a matter of fact.

An accomplice witness is someone who has participated with someone else before, during or after the commission of a crime. Harris v. State, 645 S.W.2d 447 (Tex.Cr.App.1983); Russell v. State, 598 S.W.2d 238 (Tex.Cr.App.1980), cert. denied, 449 U.S. 1003, 101 S.Ct. 544, 66 L.Ed.2d 300 (1981); Carrillo v. State, 591 S.W.2d 876 (Tex.Cr.App.1979); Arney v. State, 580 S.W.2d 836 (Tex.Cr.App.1979); Villarreal v. State, 576 S.W.2d 51 (Tex.Cr.App.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 176, 62 L.Ed.2d 114 (1979); Ferguson v. State, 573 S.W.2d 516 (Tex.Cr.App.1978), and cases cited therein at 523.

If the witness cannot be prosecuted for the offense with which the accused is charged, then the witness is not an accomplice witness as a matter of law. Harris, supra; Carrillo, supra; Easter v. State, 536 S.W.2d 223 (Tex.Cr.App.1976); Morgan v. State, 171 Tex.Cr.R. 187, 346 S.W.2d 116 (1961). Moreover, a witness is not an accomplice witness merely because he or she knew of the offense and did not disclose it, or even concealed it. Russell, supra; Villarreal, supra; Easter, supra. The witness' presence at the scene of the crime does not render that witness an accomplice witness. Brown v. State, 640 S.W.2d 275 (Tex.Cr.App.1982); Russell, supra; Arney, supra. Last, complicity with an accused in the commission of another offense does not make that witness' testimony that of an accomplice witness for the offense for which the accused is on trial if there is no showing of the witness' complicity in that offense. Carrillo, supra; Caraway v. State, 550 S.W.2d 699 (Tex.Cr.App.1977).

If there is doubt whether a witness is an accomplice witness, the trial court may submit the issue to the jury even though the evidence weighs in favor of the conclusion that the witness is an accomplice as a matter of law. Carrillo, supra, and cases cited therein at 882.

In the case before us, there was no evidence that Sauls actually participated in the robbery and murder of the deceased. Sauls was not indicted for capital murder, nor any offense arising from the actions which took place on the night of the murder. Since there was no evidence that Sauls participated in the murder, he was not an accomplice witness as a matter of law.

Moreover, Sauls' presence at the scene of the murder does not render him an accomplice witness as a matter of law. Sauls' testimony indicated that he did not anticipate that the murder would occur, he did nothing to assist in the commission of the offense, and when he attempted...