Miller v. State
| Decision Date | 21 May 1969 |
| Docket Number | No. 42069,42069 |
| Citation | 442 S.W.2d 340 |
| Parties | Billie June MILLER, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
John Cutler and Ray Epps, by Ray Epps, Houston, for appellant.
W. C. Lindsay, Dist. Atty., Walter Umphrey, Asst. Dist. Atty., Beaumont, and Jim D. Vollers, State's Atty., Austin, for the State.
The offense is robbery by assault with firearms; the punishment, 15 years' confinement in the Texas Department of Corrections.
The State's evidence depicts the appellant as a modern day female Fagin who master minded the alleged robbery, while appellant, who admitted to being known as 'Maw,' attempted to show that she had acted as a guiding light to wayward and abused teenagers and young people.
At approximately 3 a.m. on January 6, 1967, David Barnes, night cashier of the Ace Drive In, an all night grocery, was robbed at gunpoint by Eddie Carter, alias Eddie Revia, and $60 or more was taken. Carter then fled in a 1967 Dodge Dart containing the appellant, Gene Godwin and Colleen Donnohoe. Shortly before the robbery John Judson, accompanied by Billy Dyson, had parked his yellow Mustang a short distance away, and had then driven past the drive-in while Carter was inside and on for several blocks. Upon Judson's return to the robbery site he observed police cars and immediately drove upon the Houston freeway and gave chase at a high rate of speed to the fleeing Dodge. Upon drawing near he yelled to the occupants of the Dodge that the police had been alerted and to 'hurry up' and 'get the hell out of town.' At this juncture Judson's efforts were rewarded by his being arrested for speeding while the occupants of the Dodge continued on their way.
At approximately 6:40 a.m. the appellant, Carter and Godwin were arrested by the City of Houston police in the said Dodge and three pistols were recovered from the automobile. Colleen Donnohoe had been left at a friend's apartment. During a search of appellant's person at the police station the appellant removed from her brassiere $50 and fifty cents and a paper napkin and handed the same to a policewoman. On the napkin was written and 'Then get the hell out of Beaumont.'
John Judson who had been convicted of breaking and entering a coin operated machine when he lived at appellant's home in Orange, testified that on the evening of January 4, 1967, he had met the appellant and Carter who had driven over from Houston; that while they were in a Pig Stand in Beaumount the pair had solicited his aid in committing some robberies in order to raise bail money for the appellant's 19 year old son who was jailed in Harris County. While declining to assist them he wrote down some prospects for them. He identified the napkin found on the appellant as the napkin on which he had listed the prospects. Judson's testimony was substantially corroborated by Eddie Carter, the 20 year old confessed robber.
Carter, who had lived at appellant's house in both Orange and Houston, testified appellant assisted him in planning and executing the robbery of the Ace Drive In as well as Jerry's Package Store in Beaumont a day or two earlier.
Other evidence reveals that on the following night, January 5, the appellant, Carter and Colleen Donnohoe came to Beaumont from Houston in a Dodge Dart borrowed by the appellant. After being joined by Judson, Dyson and Joe Debbs they drove in two cars to Lou Ann's, a night club six miles from Orange across the Texas-Louisiana border. There they drank and danced. There also they met Godwin who returned with them to Beaumont shortly before the alleged robbery.
Testifying in her behalf the 38 year old appellant 1 admitted being with Carter in Beaumont on the occasions in question but denied knowledge that he had specific plans to rob the Ace Drive In. She acknowledged that she heard him discuss robbing Lou Ann's or some place that night. She related that her purpose in going to Lou Ann's was to find certain individuals who supposedly had involved her son in a hot check ring. She related that when Carter left the Ace Drive In he handed her some money and she had started to count it, and at this time Carter informed her that a robbery had been committed. She further stated that at this time she learned for the first time from Carter that he had just recently committed three other robberies while she was waiting in a car or while she was nearby.
Appellant in her first ground of error contends the court erred in failing to charge, despite her timely objection, that John Judson was an accomplice witness as a matter of law.
The court charged that Godwin and Carter were accomplice witnesses as a matter of law but submitted the question of Judson's status to the jury as a fact issue.
In addition to furnishing the appellant and Carter with a list of robbery prospects, he aided them in 'casing' the Ace Drive In on the night of January 4, 1967. Knowing of Carter's intent to rob and having told Carter he would 'cover' for him, Judson drove to the proposed robbery site at the time in question and then following the commission of the alleged offense warned Carter and the appellant as described above that the police had been alerted.
Where there exists no doubt or the evidence clearly shows that a witness is an accomplice witness as a matter of law the court is under a duty to so instruct the jury. His failure to do so may constitute reversible error. 24 Tex.Jur.2d, Evidence, Sec. 691, pp. 314, 317.
We agree with appellant's position that Judson was an accomplice witness as a matter of law and the court erred in failing to so charge. The question remains whether such failure is reversible error.
This precise question was recently discussed in Gonzales v. State, Tex.Cr.App., 426 S.W.2d 859. After reviewing a number of cases, this Court said:
'If appears from these cases that where the court submits to the jury the fact question of whether a certain State witness is an accomplice witness when the evidence was such as to justify a charge that such witness was an accomplice as a matter of law, and proper objection is reserved, the error does not require reversal unless the testimony of the witness is essential to the State's case (a) because, if the witness is in fact an accomplice, there is no evidence to corroborate his testimony, or (b) because, without the testimony of the witness (whether he be an accomplice or not) there is insufficient evidence to support a conviction or (c) because it is the sole corroboration of the testimony of another accomplice witness.'
Under the facts of this case Judson's testimony was corroborated by that of nonaccomplice witnesses and in part by the appellant's own testimony and written statements admitted into evidence. Further, there was sufficient evidence to support a conviction without Judson's testimony and he was not the sole corroborator of the testimony of another accomplice witness. His testimony not being essential to the State's case, ground of error #1 is overruled. Gonzales v. State, supra, and cases there cited. See also 2 Branch's Ann.P.C., 2nd ed., Sec. 741, p. 38.
In grounds of error #2 and #3 appellant contends that the court erred in failing to charge the jury that Billy Dyson was an accomplice witness as a matter of law or in refusing to submit the matter to the jury as a fact issue. We cannot agree.
Dyson, a 16 year old, went with the group to the Louisiana night club, Lou Ann's, where he drank and danced with the appellant, but there was no showing he knew of the conversations of the night before or of any intention to rob the Ace Drive In. He slept on the return trip to Beaumont and when he changed cars at the Pitt Grill in Beaumont he inquired of Judson if they were going home. It was then that Judson informed him they were going to see if Carter was going to carry out his boast. While he was with Judson at the time Judson warned the others out on the freeway, there is no showing he actively participated in giving such warning.
In Burks v. State, 97 Tex.Cr.R. 113, 260 S.W. 181, this Court held that mere presence of one without criminal connection with an offense does not make him an accomplice, nor does mere knowledge make a person having or concealing it an accomplice. See also Gregory v. State, 168 Tex.Cr.R. 452, 329 S.W.2d 94.
In 24 Tex.Jur.2d, Evidence, Sec. 690, pp. 311, 313, it is written:
While it may have been proper to have submitted the issue as a fact question to the jury, we cannot agree that the court, under the facts presented, erred in failing to do so. If it was not error to submit the issue to the jury as a fact question it certainly was not error to fail to charge that the witness Dyson was an accomplice as a matter of law.
Grounds of error #2 and #3 are overruled.
In grounds of error #4 and #5 appellant contends the trial court erred in failing to charge on her 'affirmative defenses' of being an accessory to the alleged crime and being a receiver and concealer of stolen property.
The court's charge authorized appellant's conviction as a principal to the alleged robbery or as an accomplice to said offense. The counts in the indictment alleging that the appellant was an accessory to said offense and alleging...
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