Skidmore v. State
| Decision Date | 10 December 1975 |
| Docket Number | No. 50609,50609 |
| Citation | 530 S.W.2d 316 |
| Parties | Larry Wayne SKIDMORE, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Dick Stengel, El Paso, for appellant.
Steve W. Simmons, Dist. Atty., William J. Ellis, Asst. Dist. Atty., El Paso, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.
The offense is murder under V.T.C.A. Penal Code, Section 19.02; the punishment, 30 years.
By ground of error one, appellant contends that the court erred in refusing to suppress the appellant's oral and written confessions. He contends that his arrest was illegal, that he was not properly warned, and that he was never taken before a magistrate prior to the taking of such confessions.
Appellant and his companion Dowdy were arrested in Los Angeles, California, upon information that they were using a credit card and were in possession of one automobile belonging to a person described in a missing persons report from El Paso. Appellant asked that he and Dowdy be questioned together, and they jointly told the officers that they had met a man named Wilburn in a bar in El Paso and that he had agreed to drive them north of the city to a carnival where they were working. On the way to the carnival, Wilburn drove to a secluded spot where he was relieved of his wallet and Dowdy pushed him off a cliff. Appellant and Dowdy then drove Wilburn's automobile to Los Angeles where they were arrested.
A pretrial hearing on the voluntariness of appellant's confessions showed that appellant was arrested around 10:30 a.m. on May 1, 1974. Over the following 33 hours, appellant was questioned by two California police officers for a period of not more than two and one-half hours. Appellant orally confessed on the afternoon of May 1, and his statements were reduced to writing the following day. Prior to making the oral statements and signing the written statement, appellant was warned in compliance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
At the conclusion of the lengthy suppression hearing 1 the trial court entered Jackson v. Denno 2 findings and conclusions that the written and oral confessions were freely and voluntarily given. At the trial the issue of the written confession and the oral statements was submitted to the jury with proper instructions.
The evidence supports the conclusion that the Los Angeles Police had probable cause to arrest the appellant and Dowdy, based upon the information they had as to the stolen automobile and forgery by use of the credit card. Appellant was given a full Miranda warning by the interrogating officers and signed a waiver of his rights. Miranda v. Arizona, supra, does not require that the warning be given by a magistrate. Winegarner v. State, Tex.Cr.App., 505 S.W.2d 303; Enriquez v. State, Tex.Cr.App., 501 S.W.2d 117. This ground of error is overruled.
By ground of error two, appellant contends that the court erred in declining to give his requested instruction on exculpatory statements. Appellant's brief does not inform this Court as to where in the record we may find such statements or what they were. We shall assume that he had reference to the statement found in his confession:
'On the way to the carnival Wilburn said he wanted to go with us (have sex).
Wilburn directed to the hills. We decided to take the dudes wallet. I wanted to take off and leave him. James (Dowdy) pushed him over the cliff, I didn't touch him (Wilburn). We just said give us your wallet and he gave it up, I told him just give me your wallet, it was both of our idea (to take the wallet).
James came around to the right side of the car and pushed Wilburn over the cliff, I was standing four feet away then, James was angry because Wilburn had been feeling his leg.'
The question before this Court is whether the charge gave the jury instructions which had the same effect in law as the charge which was requested. In Mitchell v. State, Tex.Cr.App., 517 S.W.2d 282, at page 286, we said:
'It is well established that special requested charges may be properly refused where the instructions given by the court are adequate and fully protect the accused as to the matters included in the requested charges.'
The requested charge would have told the jury that the State had the burden of disproving the statements set forth above; i.e., that the appellant had no intention of killing Wilburn and that the death resulted from the independent act of Dowdy.
The court instructed the jury in Paragraph 29:
'If James Dowdy pushed, shoved, or threw Clinton A. Wilburn over an embankment on the occasion in question, if he did, because of rage or resentment arising out of homosexual advances made by Clinton A. Wilburn, if any, and not in furtherance of committing or attempting to commit the offense of robbery, as that term has been defined, of Clinton A. Wilburn, or in furtherance of immediate flight from such commission or attempt to commit, then Defendant Larry Skidmore is not guilty as charged; and if you have a reasonable doubt as to this issue, you must give Defendant Larry Skidmore the benefit of such doubt and find him not guilty.'
This was an application of the facts as the appellant would have had the jury believe them and adequately submitted the case from his standpoint.
Ground of error three is that the court erred in declining to grant appellant's requested charge on independent impulse. We have concluded that Paragraph 29 quoted above adequately submitted appellant's defensive theory.
Ground of error four is that the court erred in declining to give his third requested charge on criminal responsibility. The requested charge would have told the jury that if the defendant did not solicit, encourage, direct, aid, or attempt to aid the commission of the murder, they must find the defendant not guilty.
In Randolph v. State, Tex.Cr.App., 493 S.W.2d 869, we said a charge should have been given that the accused did not intend to join his co-indictee in robbing the injured party. However, failure to give the charge was not error where the jury was instructed that in order to convict they must find accused and his co-indictee were acting together in the robbery.
In the case at bar the court instructed the jury on criminal responsibility as set forth in V.T.C.A. Penal Code, Section 7.02(b). 3 The pertinent paragraphs of the charge are as follows:
'A person is criminally responsible for an offense commited by the conduct of another if, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in the furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy. Mere presence at the scene of the crime is not sufficient, however, to establish responsibility.
In a prosecution in which a defendant's criminal responsibility is based on the conduct of another, such defendant may be convicted on proof of commission of the offense and that he was a party to its commission, and it is no defense that the person for whose conduct such defendant is criminally responsible has been convicted of a different offense.
A person commits criminal conspiracy if, with the intent that a felony be committed:
(1) he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and
(2) he or one or more of them performs an overt act in pursuance of the agreement.
An agreement constituting a conspiracy may be inferred from acts of the parties.
Bearing these instructions and charges in mind:
If you believe and find from the evidence...
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Thompson v. State, 8 Div. 392
...affirmed, 507 So.2d 121 (Ala.1986), cert. denied, 484 U.S. 905, 108 S.Ct. 249, 98 L.Ed.2d 206 (1987). In Skidmore v. State, 530 S.W.2d 316, 321 (Tex.Cr.App.1975), the court found no variance between the cause of death alleged in the indictment and the evidence, in light of the appellant's c......
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Brown v. State
...(Ala.Cr.App.1986), affirmed, 507 So.2d 121 (Ala.198[7]), cert. denied, , 108 S.Ct. 249, 98 L.Ed.2d 206 (1987). In Skidmore v. State, 530 S.W.2d 316, 321 (Tex. Cr.App.1975), the court found no variance between the cause of death alleged in the indictment and the evidence, in light of the app......
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Woods v. State
...not be proven in a conspiracy case. McCann, 606 S.W.2d at 898; Brown v. State, 576 S.W.2d 36, 42 (Tex.Cr.App.1979); Skidmore v. State, 530 S.W.2d 316 (Tex.Cr.App.1975). Usually, an indictment which tracks the language of the statute is legally sufficient, and the State need not allege facts......
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Kunkle v. State
...to the facts of the case, and the charge given was adequate to fully protect appellant as to the matters included. See Skidmore v. State, 530 S.W.2d 316 (Tex.Cr.App.1975). We therefore overrule appellant's third ground of In his fourth ground of error, appellant contends that the trial cour......