Moncier v. State, 05-84-01189-CR

• Decision Date: 14 January 1986
• Docket Number: No. 05-84-01189-CR,05-84-01189-CR
• Citation: 704 S.W.2d 451
• Parties: Daniel Dewayne MONCIER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 451

704 S.W.2d 451

Daniel Dewayne MONCIER, Appellant, v. The STATE of Texas, Appellee.

No. 05-84-01189-CR.

Court of Appeals of Texas Dallas.

Jan. 14, 1986.

Richard Weaver, McKinney, for appellant.

H. Ownby, Crim. Dist. Atty., Roger V. Dickey, Asst. Dist. Atty., McKinney, for appellee.

Before the court en banc.

STEPHENS, Justice.

Daniel Dewayne Moncier appeals his conviction of burglary of a habitation. In three grounds of error he contends: (1) the only witness connecting him to the offense was an accomplice witness as a matter of law, and that her uncorroborated testimony was inadmissible, (2) the submission to the jury during the punishment stage of the trial, over his timely objection, of whether a deadly weapon was used or exhibited during the commission of the offense violated due process because the indictment contained no allegation of a deadly weapon, and, (3) that there was no evidence to support the submission of the question of the use of a deadly weapon. We disagree with each contention, and accordingly, we affirm his conviction.

At about 3:00 a.m. on the morning of March 21, 1984, appellant, accompanied by co-defendant Timothy Kitchens, and Dianna Mitchell, awakened the occupant of a trailer house situated in a trailer park in Frisco, Texas, by beating on the door and demanding admittance. The occupant called the police. The occupant testified that the person outside began tearing the door off the hinges, trying to get into her trailer. As the person broke into the trailer, the occupant fled through a rear door. When the police arrived, they searched the premises and adjoining area. Co-defendant Kitchens was apprehended walking down a creek bank in an area close to the location of the alleged burglary. Dianna Mitchell was found in the van parked near the trailer house hiding under some covers. Appellant was arrested in a trailer house where he had asked permission to use the telephone.

The crucial question is whether Dianna Mitchell was an accomplice witness as a matter of law. Her uncorroborated testimony is the only evidence connecting appellant to the commission of the crime. Consequently, if, as a matter of law, she is an accomplice witness, her uncorroborated testimony will not support the conviction, and appellant must be acquitted.

TESTIMONY OF DIANNA MITCHELL

Dianna Mitchell was 19 years of age at the time of trial. At the time of the alleged offense she was living with her mother and stepfather in an apartment in McKinney, Texas. She testified that around midnight on March 21, 1984, Moncier and Kitchens drove to her apartment in a van. She went outside and Moncier asked her if she wanted to make $500. She asked how, and was told that all she had to do was to go up to a door, knock on it, turn around, and get back in the van. She was given no more details. Needing the money, she decided to go along with Kitchens and Moncier. She went back into the apartment, got her shoes, came back out, got into the van and the three drove away.

They drove around for a while, then went to Moncier's apartment where he went inside for about fifteen minutes. When he came out they drove around a while longer, then went to Kitchen's house. Both Moncier and Kitchens got out and went into Kitchen's house and then into the garage. They brought out a white bag and put it into the van. Mitchell could not see what was in the bag. Moncier, at this time, had on an army green belt with little pouches in it. He put a small stuffed toy into one of the pouches, saying that it would make it look like it contained a grenade. Mitchell saw some little blue shotgun shells come out of the pouch. They then went to Robert Kitchens' house and Timothy Kitchens went inside for about 30 minutes. Moncier and Mitchell waited in the van. No discussion was had at this time about their plans. Kitchens exited the house with a white styrofoam box and placed it in the back of the van.

Kitchens then said they were going to the "country." They started the van and drove toward Frisco, Texas. She asked why they were driving up and down the road, and both said they were trying to find a lab. According to Mitchell, this was the first time any explanation, as to their plans, was given. Moncier said they were going to go "hit two dykes." Dianna was asked by the prosecutor if she recalled the exact words that either of them said to her when they first explained to her what they were going to do. She answered:

A. DeWayne told me, "I can tell you now that it's too late."

Q. He said--

A. "I can tell you not it's too late." He said, "I can tell you now because it's too late for you to get out." He said, "We're going to go hit two dykes."

Shortly after this conversation, appellant stopped the van, both men got into the back, opened the styrofoam box, took a broken down rifle from it and started putting it together. This was the first time Mitchell had seen a rifle.

After assembling the rifle, the three drove to a trailer park and parked within a few feet of a trailer house. All three got out of the van and approached the trailer. Mitchell testified that she stepped up on a wooden step and knocked on the door. The two men were standing with their backs to the trailer, one on each side of the door, where they could not be seen by the occupants of the trailer. The following testimony was developed:

Q. [Prosecutor, Ms. Springer] Okay. As you stood on the bottom step of those steps in front of that door, that trailer, with DeWayne Moncier on one side of you with a rifle in his hand and Timothy Kitchens on the other side of you, both of them standing with their backs against the trailer and one of them with--excuse me, both of them with bandanas across their faces, what was going through your mind?

A. [Mitchell] What am I doing here?

Q. Were you frightened?

A. Very.

Q. Did you want to be where you were right then?

A. No.

Q. Why didn't you leave?

A. It was too late for me to back out.

Q. Well, what do you mean by that?

A. I was already there.

Q. What do you think would have happened if you just turned around and left, walked away?

MR. CHAPMAN: Objection, calls for speculation.

THE COURT: Overruled.

Q. (By Ms. Springer) What do you think would have happened if you had walked away from that trailer right then?

A. I have no idea.

Q. Were you frightened of any particular circumstance in particular? I'm sorry, I'm repeating myself. Were you frightened of anything in particular?

A. I was scared of them because I didn't know what they would have done.

TEX.PENAL CODE ANN. art. 7.02(a)(1)(2) (Vernon 1974) provides that a person is criminally responsible for an offense committed by another, if acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.

From the evidence recited, as well as the other evidence adduced at trial, a strict construction of the statute would require a determination that Dianna Mitchell was an accomplice witness as a matter of law. However, the cases have consistently held that where there is any doubt as to whether a witness is an accomplice, even though the evidence preponderates in favor of a conclusion that the witness is an accomplice as a matter of law, the proper procedure is to submit the matter to a jury. Harris v. State, 645 S.W.2d 447, 454 (Tex.Crim.App.1983); Brown v. State, 640 S.W.2d 275, 279 (Tex.Crim.App.1982); Carrillo v. State, 591 S.W.2d 876, 882 (Tex.Crim.App.1979); Arney v. State, 580 S.W.2d 836, 839 (Tex.Crim.App.1979); Colunga v. State, 527 S.W.2d 285, 287 (Tex.Crim.App.1975); Van Buskirk v. State, 492 S.W.2d 279, 281 (Tex.Crim.App.1973); Crew v. State, 675 S.W.2d 787, 788 (Tex.App.--Dallas 1984, pet. ref'd); Hill v. State, 666 S.W.2d 130, 133 (Tex.App.--Houston [14th Dist.] 1983, no pet.); Shanks v. State, 643 S.W.2d 150, 153 (Tex.App.--El Paso 1982, pet. granted).

This long line of cases reflect the proper procedure to be followed. In this case there was doubt in the mind of the trial judge, which was borne out by his submission of the matter to the jury, and that doubt was set to rest by the finding of the jury that the witness, Dianna Mitchell, was not in fact an accomplice witness. For this court to hold that the witness was an accomplice witness as a matter of law would violate the jury system, by substituting our judgment for the judgment of the jury. We did not view the witness, nor observe her demeanor on the witness stand. We hold that the evidence is inconclusive that Dianna Mitchell was an accomplice as a matter of law. Appellant's ground of error is overruled.

Appellant argues, in his second ground of error, that the trial court erred by submitting a special issue at the punishment stage of the trial, over his timely objection, as to whether a deadly weapon was used or exhibited during the commission of the offense. He contends that this submission violated his right to due process because the indictment contained no allegation of a deadly weapon. We disagree.

Appellant's precise contention under this ground of error is that a finding that appellant used or exhibited a deadly weapon during the commission of the offense subjects him to a greater punishment because, under TEX.CODE CRIM.PROC.ANN. art. 42.12, sec. 15(b) (Vernon 1979), his period of incarceration is extended for a greater length of time before he becomes eligible for parole. Thus, he contends, he is entitled to notice in the charging instrument that the State intends to seek an affirmative finding that a deadly weapon was used or exhibited in the commission of the offense.

We are not unmindful of the recent opinion of the Texas Court of Criminal Appeals in Polk v. State, 693 S.W.2d 391 (1985). In the Polk case the court sat en banc. Judge Miller wrote for the majority, Judge Clinton concurred with written opinion, Judge Teague concurred in part and dissented in part, with written opinion, and Judge Onion...