Selman v. State
| Decision Date | 22 January 1987 |
| Docket Number | No. 05-85-01377-CR,05-85-01377-CR |
| Citation | 726 S.W.2d 178 |
| Parties | Michael Joe SELMAN, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
John H. Hagler, Dallas, for appellant.
Constance M. Maher, Asst. Dist. Atty., Dallas, for appellee.
Before VANCE 1, McCLUNG and McCRAW, JJ.
ON MOTION FOR REHEARING
This Court's opinion of December 2, 1986 is withdrawn and this one is substituted therefor.
Michael Joe Selman appeals his conviction for criminal conspiracy to commit capital murder. Punishment was assessed by the jury at twenty-five years confinement. Selman contends that 1) the evidence is insufficient to corroborate the accomplice testimony and support the conviction, 2) the jury instruction for the co-defendant naming Selman as an accomplice as a matter of law constitutes reversible error, and 3) the trial court improperly admitted evidence of an extraneous offense. Because we hold that the jury instructions for the co-defendant constituted an impermissible comment on the evidence in Selman's case, we reverse the judgment of the trial court.
Selman's case was consolidated for trial with that of Tommy Barnes who has appealed his conviction for conspiracy to commit capital murder separately.
The record shows that on January 6, 1985, Selman met his co-defendant, Tommy Barnes, along with Austin Plunkett and Paul Kosmach at the residence of Tommy Barnes. Candice Messick and others were also present. After dinner, the men at the gathering walked outside and agreed that Danny Doyle needed to be killed. Doyle was found dead later that night.
Austin Plunkett testified to the plan and to the actual means used to murder the victim. The conspirators formed the plot following dinner on January 6th. Paul Kosmach agreed to do the killing and procured a knife to perform the task. The others then attempted to contact Doyle to set up a meeting. Later that evening, Kosmach left the house with Doyle who had coincidentally stopped by Barnes' home. Kosmach rendezvoused with the other conspirators later that evening at the parking lot of a grocery store.
Candice Messick, Selman's girlfriend, testified that on January 6th, a group met for dinner at Barnes' house. Following dinner, Selman and the other men retired to the backyard. Messick testified that later that night the conspirators went to a grocery store parking lot to await Kosmach.
Roger Babineau and William Hambleton testified to their activities in planning to set up a methamphetamine lab for Selman and Doyle. According to Hambleton, Selman said that it was necessary to kill Doyle because of fear that he would "rip them off."
Appellant's first three points of error allege that there was insufficient evidence to corroborate the accomplice witnesses' testimony regarding an agreement, overt act, and remuneration--all necessary elements for the conspiracy to commit capital murder.
The elements of conspiracy are an agreement to engage in criminal conduct and the performance of an overt act in furtherance thereof. Tex. Penal Code Ann. § 15.02(a) (Vernon 1984). See also, McCann v. State, 606 S.W.2d 897, 898 (Tex.Crim.App.1980). Thus, both the agreement and an overt act must be proven.
The State demonstrated through the testimony of Plunkett that at the backyard meeting on January 6th, plans were made to kill Doyle. Overt acts in furtherance of these plans were carried out later that night. The trial court in the jury charge identified Plunkett, Messick, Hambleton, and Babineau as accomplices. The sufficiency of the evidence is measured by the charge that was given. Boozer v. State, 717 S.W.2d 608, 610 (Tex.Crim.App.1984). Since Plunkett was an accomplice, the law requires that "a conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense." Tex. Code Crim.Proc.Ann. art. 38.14 (Vernon 1980).
The test to apply in determining sufficiency of the corroboration is to eliminate from consideration the testimony of the accomplice witness and then examine the testimony of the other witnesses to ascertain if there is inculpatory evidence which tends to connect the accused with the commission of the offense. Cruz v. State, 690 S.W.2d 246, 250 (Tex.Crim.App.1985). In applying this test, the testimony of one accomplice cannot be used to corroborate that of another. Caraway v. State, 550 S.W.2d 699, 702 (Tex.Crim.App.1977). This test does not require, however, that the corroboration directly link the defendant with the crime or that it be sufficient in itself to establish guilt. Richardson v. State, 700 S.W.2d 591, 594 (Tex.Crim.App.1985). It need only make the accomplice's testimony more likely than not. Passmore v. State, 617 S.W.2d 682, 684 (Tex.Crim.App.1981); Eckert v. State, 623 S.W.2d 359, 361 (Tex.Crim.App.1981).
In this case, Barnes' son testified that Selman and the other conspirators met at Barnes' house for dinner one night and then went to the backyard. Doyle's son identified the jewelry, gun, and briefcase stolen from Doyle at the time of his death. Selman's fingerprint was found on property stolen from the victim. Selman admitted to having dinner with the other conspirators, having rented a motel room in the city the night of the murder, having been in possession of the stolen property, and having made arrangements to fence the jewelry. Hidden papers stolen from Doyle and hinges from the burnt briefcase were found corroborating Hambleton's testimony that Selman directed him to dispose of the property.
We hold that the non-accomplice testimony in this case made the accomplices' testimony more likely than not and, therefore, was sufficient. It was not necessary specifically to corroborate that the murder was for remuneration. Cf. Holladay v State, 709 S.W.2d 194 (Tex.Crim.App.1986). If corroborating testimony was required to be sufficient in itself to establish the guilt of the accused, the testimony of the accomplice would be of no value. Pinson v. State, 598 S.W.2d 299, 302 (Tex.Crim.App.1980). We, therefore, overrule appellant's first three points of error.
Selman also argues that the evidence is insufficient to support the conviction because the murder did not occur through the same means by which it was planned. In Barnes' backyard it was agreed that Kosmach would do the actual killing by cutting the victim's throat with the knife. Intricate plans were made on how to lure the victim to the right spot. However, the victim surprised the group by coming to Barnes' house. Kosmach took advantage of the opportunity and asked the victim for a ride. He later shot the victim four times. Thus, Selman argues, Kosmach acted independently.
As has been already noted, the elements of conspiracy are an agreement to engage in criminal...
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Selman v. State
...conviction by holding that the charge was a prejudicial comment on the weight of the evidence in appellant's case. Selman v. State, 726 S.W.2d 178 (Tex.App.--Dallas 1987). This Court granted the State's petition for discretionary review to determine whether this holding of the Court of Appe......