Taylor v. State

• Decision Date: 28 April 1983
• Docket Number: No. 13-81-258-CR,13-81-258-CR
• Parties: George TAYLOR, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 753

654 S.W.2d 753

George TAYLOR, Appellant, v. STATE of Texas, Appellee.

No. 13-81-258-CR.

Court of Appeals of Texas,

Corpus Christi.

April 28, 1983.

Rehearing Denied May 26, 1983.

Richard Haynes and Jan Woodward Fox, Haynes & Fullenweider, Houston, Larry J. Adams, Giles & Adams, Corpus Christi, for appellant.

Grant Jones, Dist. Atty., Corpus Christi, for appellee.

Before NYE, C.J., and BISSETT, YOUNG, KENNEDY and GONZALEZ, JJ., Sitting En Banc.

OPINION

BISSETT, Justice.

This is an appeal by George Taylor from a conviction for the offense of aggravated assault under Tex.Penal Code Ann. § 22.02(a)(1) (Supp.1982). The jury assessed punishment at ten years' imprisonment and a fine of $5,000.00, but recommended probation. Judgment was rendered on the verdict in accordance with the jury's recommendation. We reverse the judgment of the trial court.

The conviction is based solely on circumstantial evidence. The trial court charged the jury on circumstantial evidence, and in pertinent part, instructed the jury that if they believed beyond a reasonable doubt that on May 15, 1980,

"... the defendant, George Taylor, acting with the intent to promote the commission of the offense of aggravated assault against Michael Brink, did then and there, solicit, encourage or direct Benjamin Boyd Smith to solicit, or encourage, or direct Kenneth Wolters to commit the offense of aggravated assault against Michael Brink, then you will find the defendant guilty of aggravated assault.

Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the Defendant of aggravated assault."

Appellant, in his first ground of error, challenges the sufficiency of the evidence to connect him with the commission of the offense with which he was charged. Since we sustain that ground, it is not necessary that we consider the remaining grounds of error.

It is conclusively shown that appellant did not personally assault Brink. It is undisputed that Kenneth Wolters and Harold Lee assaulted Michael Brink in an office building in downtown Corpus Christi, Texas, shortly after 1:30 p.m. on May 15, 1980. It is also undisputed that Benjamin Boyd Smith engaged Wolters and Lee to assault Brink, and that Smith drove them from San Antonio, Texas, to Corpus Christi on the morning of May 15, 1980, and arrived in Corpus Christi at about 11:00 a.m. Wolters, who was granted immunity from prosecution, testified for the State. Neither appellant, Lee nor Smith testified.

The record reflects that, in October, 1975, Jeanne Goodhew went to work for appellant as his personal secretary. At that time, and at all times pertinent to this appeal, appellant maintained an office at Taylor Brothers Jewelry Store in Corpus Christi, Texas, and owned a condominium in the Las Brizas Condominium, in Corpus Christi. Appellant also owned and operated several sporting goods stores; he was active in "softball" and in "fast pitch" baseball. Appellant and Goodhew had a "romantic involvement" from the first part of 1976 until sometime in March, 1978, when Goodhew left appellant's employ. She was employed as a secretary for the law firm of Meredith, Donnell and Edmonds, in Corpus Christi at the time Brink was assaulted.

Goodhew met Brink in February, 1978. They began to see each other almost daily and became "romantically involved." One evening in March, 1978, Brink appeared at Goodhew's house. Upon arrival, he found appellant, a man whom Brink had never seen before, emerging from Goodhew's bedroom. Each ordered the other to leave; neither did so. Brink then attacked appellant, "hit him one good punch in the eye," and chased him out of the house. No charges were filed against either man. The fight took place "in the bathroom and the hallway" of the house. Appellant, shortly after the incident, told Goodhew that "if he [ (Taylor) ] had had his bat, he [ (Brink) ] wouldn't have been able to do this to him."

On the next Monday after the fight, Brink phoned appellant, primarily for the purpose of asking him not to fire Goodhew. Brink testified that appellant, during this conversation, threatened to send "some guys to get me." Goodhew testified that about two weeks after she left her employment with appellant, she was told by appellant that he would not harm Brink if she returned to his employ, but if she refused he would wait a "couple" of years and then "he'd take care of him [ (Brink) ]." Goodhew refused.

Approximately one month after the confrontation between appellant and Brink, appellant sent Goodhew a framed picture of an oak tree. She showed it to Brink who folded the picture (which for all practical purposes destroyed it) and mailed it along with a letter to appellant. Shortly thereafter, Brink received a rather sarcastic letter, signed "D," which enclosed a nude photograph of Goodhew. Goodhew testified that appellant was the only person who had ever taken photographs of her in the nude. The person who wrote the letter to Brink was never identified.

There is no evidence of any further contacts between Brink and appellant. Over two (2) years later, on May 15, 1980, Brink, who was then employed as a special investigator for the law firm of Meredith, Donnell & Edmonds in Corpus Christi, was in his office shortly before 1:30 p.m., discussing a case with an attorney in the firm. Brink received a phone call relating to some people coming to see him, and the attorney departed. Brink then instructed the receptionist to show his expected visitors to his office upon their arrival. Shortly afterwards, two men, who were unknown to Brink, entered his office. One man (later identified as Wolters) was about 6-4, and weighed about 220, while the other (later identified as Lee) was smaller, about 5-10 or 5-11, and weighed about 180. The larger of the two proceeded to swing a baseball bat at Brink's head. This man (Wolters) repeatedly swung at Brink's head with the bat, without success, instead striking Brink on the arm, ribs and back. Brink received five or six solid blows. He was not hospitalized and was able to return to work the next day despite pain and bruises. Lee did not strike Brink with a baseball bat. The bat which Wolters used was recovered in the library of the law firm and another bat, similar to the one in the possession of Lee, was recovered near the place where Wolters and Lee were apprehended and handcuffed by a security guard in the building where the assault occurred. Both bats were introduced in evidence.

Appellant sponsored softball teams which competed at the city, state and national levels. Some of his sporting goods stores carried baseball bats in their inventory which were similar to those admitted in evidence.

Richard Pannell, a friend of appellant for 20 years, stated that he heard about an incident where two men allegedly entered a Corpus Christi office building and assaulted a man by the name of Brink. He knew nothing about the incident personally and further stated that his only knowledge was "just hearsay," from what other people told him. He had a conversation with appellant on the afternoon of June 2, 1980. The following questions by the prosecutor and Pannell's answers thereto relate to that conversation:

"Q Did you (sic) tell the jury as best you can recall exactly what words he used, or what words he used?

A Well, he said he had screwed up; that he was in trouble."

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"Q ... What else did he say in reference to his declaration to you that he was in trouble?

A He said that he was in over his head and that he may wind up having to take his medicine.

Q What else did he say?

A He said he had lied to his attorney, but he had not lied to a grand jury.

Q Okay.

A And--

Q Okay, in this regard, did he make any statements to you concerning what he was making reference to?

A He said in the context of the conversation about this baseball bat deal."

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"Q Now, in the course of your conversation, did Mr. Taylor make any reference to the nature of the parties involved in that incident?

A He said there were some rough people involved.

Q Did he give any names?

A No, sir."

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Wolters related that he and Lee first met Smith, at some undetermined time, in the San Antonio law offices of Allen Brown. Approximately one week later they met with Smith again and planned an attack on a man, who, at that time was unknown to Wolters. The extent to which the man was to be hurt was left up to Wolters and Lee. Wolters did not know Brink and had never seen him until he entered Brink's office. Wolters said that he did not intend to hurt Brink, just to scare him. Wolters was not told for whom, if anyone, Smith was working in connection with the assault on Brink.

While on the way from San Antonio to Corpus Christi, Smith "pulled out a list," and Smith and Lee had a conversation, which was overheard by Wolters. According to Wolters, the "list" contained Brink's name, his place of employment, his home address, where he parked his car, places where he "frequented," and "pertinent information as far as locating the man." During the drive, Smith, who had baseball bats in the vehicle, offered the use of the bats to the two of them and of a revolver to Lee, to be used by them in the proposed assault. The offer of the revolver was refused.

Wolters further testified, that, after arriving in Corpus Christi, Smith, Wolters and Lee "ate in a cafe at the ground level," near the Petroleum Building. After lunch, the three walked around in the area in an attempt to locate an automobile which was registered to Brink. They were unsuccessful. They then went to Brink's house, but Brink was not there. Then, the trio proceeded back to the downtown area, and Smith made a phone call and found out where Brink was employed; Smith called the employer "and verified that he (Brink) was working there." After the phone call, Smith, Wolters and Lee drove around the building where Brink worked....