Marlo v. State

• Decision Date: 17 September 1986
• Docket Number: No. 472-84,472-84
• Citation: 720 S.W.2d 496
• Parties: Harry Michael MARLO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 496

720 S.W.2d 496

Harry Michael MARLO, Appellant, v.The STATE of Texas, Appellee.

No. 472-84.

Court of Criminal Appeals of Texas En Banc.

Sept. 17, 1986.

Mathew B. Edquist, Daniel W. Shindler, Bay City, for appellant.

Jim Mapel, Dist. Atty. & Jim Turner, Asst. Dist. Atty., Angleton, 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 of the offense of murder, his punishment assessed by the jury at 60 years confinement in the Texas Department of Corrections.

On appeal appellant argued that the trial court erred in failing to instruct the jury that State's witnesses Charles Pee, Jr., and Rohnie Johnson were accomplice witnesses as a matter of law, or alternatively, in failing to submit the issue to the jury.The Court of Appeals simply ruled that Pee and Johnson were not accomplices, and affirmed appellant's conviction.Marlo v. State, 681 S.W.2d 82(Tex.App.--Houston [14th]1984).In order to support a conviction, accomplice witness testimony must be corroborated by other evidence "tending to connect the defendant with the offence committed."Art. 38.14, V.A.C.C.P.We granted appellant's petition for discretionary review to examine the court of appeals' apparent holding that the evidence supports neither an instruction that Pee and Johnson were accomplices as a matter of law, nor one submitting that issue to the jury for its determination.

It was not shown that Pee and Johnson were accomplices as a matter of law by virtue of having been coindictees for the offense for which appellant was being tried.¹ McCloud v. State, 527 S.W.2d 885(Tex.Cr.App.1975).It is only when the evidence clearly shows that the witness is an accomplice as a matter of law that the trial court must so instruct the jury.Arney v. State, 580 S.W.2d 836(Tex.Cr.App.1979).Based upon the evidence, set out post, we agree with the conclusion of the court of appeals that it was not established that witnesses Pee and Johnson were accomplices as a matter of law, and the trial court did not err in refusing to instruct the jury that they were.We turn now to the question whether the evidence raised a fact issue which properly should have been submitted to the jury to decide.

Unless otherwise indicated, the following account is taken from Pee's testimony.² Pee and Johnson rented a trailer from appellant, located behind appellant's house in Bay City.Appellant and Pee were coworkers at an oil well service company.Johnson had recently moved down from Ohio to seek employment.On Christmas Day, 1981, the three men left Bay City in appellant's truck and drove to Galveston.There they made several stops before alighting at a bar called Kon Tiki sometime around eight to nine o'clock, p.m.All three men had been drinking since the time they left Bay City.In the bar they met three women, La Nora McGehee, her cousin, Carolyn Cranford and the deceased, Jamie Price, also known as "Smokey," who joined them at their table.

During the course of the evening Johnson became intoxicated, and asked Pee to take him out to appellant's truck.A short time later Pee himself joined Johnson in the truck to wait for appellant.When appellant returned to the truck he had Price with him.He explained that Price "needed a ride home; that she lived in Old Ocean which was on the way to Bay City."³ Price appeared to Pee to be "pretty drunk," and along the way she began to boast:

"Q: What was she saying?

A: She was saying that her girl--I can't remember.You want her exact words?

Q: If you remember them, sir.

A: She said she had five of the best looking women in the world, and that--let's see--I believe, ten bad mother fuckers in the world and nine of them sent her Christmas cards.

Q: Did she act more like a man or a woman?

A: She acted more like a man.

Q: Did she appear to be tough?

A: Yes, sir, she did appear to be tough.

Q: Did she brag about her fighting ability?

A: Yes, sir.She said that she was a blackbelt in Karate."

Subsequently Price passed out.Johnson then indicated a desire to "make out" with her, ⁴ and it was decided that they would go to a well site known to appellant and Pee through their work for the purpose of carrying out this intent.On the road leading to the well site Pee told Johnson that "if [Price] was a blackbelt in Karate, she might just kick his ass."Appellant asserted that if Price gave them any trouble, "that he had Little Joe with him.""Little Joe" was revealed to be a small nickel plated .22 caliber pistol.

At the well site appellant and Pee got out of the truck and Johnson began to unbutton Price's blouse.Price roused and jumped out of the driver's side of the truck, approaching appellant, who stood with Pee at the front.Demanding to know where she was, Price complained that she had taken appellant to be "a man of his word."Meanwhile Johnson exited the passenger side, came to the front and explained that "all he wanted was a piece of ass."⁵ Price responded, "You will have to kill me first."Without a word appellant pulled out the .22 pistol and shot Price twice in the head, exclaiming thereafter, "There's a bad motherfucker," and then, "There's only three bad mother fuckers in the world and two of them send me Christmas cards."When Price stirred, appellant kicked her and shot her three more times.Pee stated he was "shocked" by this turn of events, testifying that it was "pretty far from [his] mind."Johnson testified that he was "surprised."Neither man moved until appellant ordered them to remove Price's jewelry.Each asserted he was afraid of appellant.

The three men stripped Price of her jewelry, appellant for some unexplained reason removed her blouse, and the body was loaded into the bed of the truck.Pee testified he cooperated from fear appellant might kill him otherwise.The body was dumped into a nearby creek, where it was found January 2, 1982.After thus disposing of the body, the three stopped at a carwash to wash blood from the bed of the truck, went into a convenience store to get some coffee, and stopped on a bridge to throw Price's jewelry over the edge.During all this appellant threatened both Pee and Johnson, and instructed Pee to tell anyone who asked that Price had never gotten into his truck after leaving the Kon Tiki.Between 2:30 and 3:00 a.m. they arrived back at appellant's house in Bay City.Appellant's wife testified they then came into the house, turned the television on loud, and talked; Pee and Johnson maintained they never went in the house, but went straight to their trailer.

Johnson subsequently fled to Ohio.When initially questioned by police, Pee related the story he testified appellant told him to tell.

At the conclusion of the evidence appellant submitted written requested instructions which defined criminal responsibility under the terms of V.T.C.A. Penal Code, Section 7.02 (a)(2), ⁶ and would have required the jury to determine whether witnesses Pee and Johnson were parties, and hence accomplices under this definition, and if so, would require that each be corroborated by evidence "tending to connect the defendant with the commission of the offense charged" to support a conviction.SeeP. McClung, Jury Charges For Texas Criminal Practice (1985 ed.)at pp. 255-56.The trial court refused to give these instructions to the jury.

The court of appeals found the record devoid of evidence that Pee and Johnson had any foreknowledge of the murder, and concluded therefrom that "[w]ithout a common understanding, or proof of criminal intent," neither Pee nor Johnson could be considered an accomplice witness.We believe the court of appeals has construed the record too narrowly.

It is true that we have held that the mere fact that a witness was present when an offense was committed does not compel the conclusion the witness is an accomplice witness to that offense.Brooks v. State, 686 S.W.2d 952(Tex.Cr.App.1985);Arney v. State, supra.Further, a witness is not deemed an accomplice witness because he knew of the offense but failed to disclose it or even concealed it; this was true even before the 1974Penal Code removed accessories from the law of parties.Easter v. State, 536 S.W.2d 223(Tex.Cr.App.1976).Nonetheless, in determining whether a person was a participant in an offense we may look to events before, during, and after commission of the offense, including actions which show an understanding and common design to do a certain act.Alexander v. State, 607 S.W.2d 551(Tex.Cr.App.1980).Both presence of a witness at the scene of the offense, and facts which tend to show the witness was an accessory to the offense, or at least that he failed to disclose or actively concealed it, are circumstances which, though each standing alone would not establish the witness as an accomplice, in combination with other facts may suffice to show the witness was a participant.Harris v. State, 645 S.W.2d 447(Tex.Cr.App.1983).Flight may also be factored into this determination.Id.

By their own testimony Pee and Johnson established their presence at the scene of the killing.It is clear that a common understanding existed among appellant and these two that some offense would be committed, and that use of deadly force was contemplated, however jokingly, to effectuate that end; indeed several offenses were committed or were being committed by all three in concert by the time the offense alleged in the indictment occurred.⁷Both witnesses participated in disposal of the body and its effects, and Pee personally washed out the bed of the truck afterwards.There is some indication the three might have conferred upon arriving back at appellant's house in Bay City, though as noted ante, this was contested.Johnson fled the jurisdiction.Pee initially lied to investigators, telling a story which, if true, would have exculpated all of them.

Still the court of...