Tucker v. State, 43226

• Decision Date: 25 November 1970
• Docket Number: No. 43226,43226
• Citation: 461 S.W.2d 630
• Parties: Robert D. TUCKER, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 630

461 S.W.2d 630

Robert D. TUCKER, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 43226.

Court of Criminal Appeals of Texas.

Nov. 25, 1970.

Rehearing Denied Jan. 27, 1971.

Eddington & Friloux by C. Anthony Friloux, Jr., Houston, for appellant.

Carol S. Vance, Dist. Atty., Phyllis Bell and Jimmy R. James, Asst. Dist. Attys., Harris, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

MORRISON, Judge.

The offense is that of being an accomplice to the crime of murder with malice; the punishment, ninety-nine (99) years.

Appellant's first ground of error is that the jury heard not only that one of the principals had been found guilty, but also that death had been the punishment in this principal's case.

It is axiomatic that it is inadmissible to prove that another, jointly or separately indicted for the same offense, has been convicted or acquitted. Bacon v. State, 147 Tex.Cr.R. 605, 183 S.W.2d 177, Barton v. State, 172 Tex.Cr.R. 600, 361 S.W.2d 716.

Another situation is presented when the accused is charged as an accomplice and evidence is offered to show that a principal is guilty of or has been convicted for the same offense. In the early case of Arnold v. State, decided by the Court of Appeals in 1880, 9 Tex.Ct.App., 435, the court said, at page 438:

'An accomplice under our Code is the same as an accessary before the fact by the common law with very much the same criminal procedure. In order to convict the accomplice, the State must prove the guilt of the principals and that the accomplice advised, commanded, or encouraged the principals to commit the offense. There are two separate and distinct propositions demanding full proof of the State. The principals not having been tried and convicted, so that the record of their conviction could be introduced to establish their guilt, the State was required to prove their guilt in the same manner and to the same certainty as if they themselves had been upon trial; for their guilt must be shown before the accomplice can be legally convicted.'

Next in Crook v. State, 27 Tex.App. 198, 11 S.W. 444, where Crook was charged with being an accomplice, the court, at page 445, said:

'In a prosecution against a defendant charged as an accomplice, it is essential for the state to establish the guilt of the principal of the crime charged to have been committed by him. In this case it was essential for the state to establish the guilt of John Middleton, the alleged principal, of the murder of James H. Black. Without proof of Middleton's guilt as principal, the defendant could not be convicted as an accomplice.'

In Blumann v. State, 33 Tex.Cr.R. 43, 21 S.W. 1027, the Court stated:

'Nor did the court err in admitting proof of the confession of George B. Jones. The appellant was indicted as an accomplice, and Paul Kirschner and George B. Jones were charged as principals, and it devolved on the state to prove the guilt of the principals.'

In Tuttle v. State, Tex.Cr.App., 49 S.W. 82, the Court said:

'The conviction of appellant was for being an accomplice to his principals, T. J. and N. Singleton, in the perpetration of the alleged swindling. On the trial, the judgment of conviction of T. J. Singleton was introduced in evidence. Appellant objected to the introduction of this evidence, 'because said judgment and sentence was immaterial and inadmissible, and was not competent as proof of guilt against T. J. Singleton, and because same would tend to prejudice the minds of the jury * * *."

Later in the opinion, the Court said:

'We believe that said judgment of conviction was competent evidence to be considered by the jury in determining the guilt of the said T. J. Singleton. It was necessary for the state to make out a case against the principal before it could claim a conviction of appellant, and in our opinion said judgment of conviction was admissible in evidence against said Singleton.'

In Aven v. State, 77 Tex.Cr.R. 37, 177 S.W. 82, where Aven was tried as an accomplice to arson, the Court said:

'The record shows that said principal had been convicted some time before the trial of appellant, and that in his case he testified, admitting that he had set fire to the house, and showing his guilt as principal.'

Later in Espalin v. State, 90 Tex.Cr.R. 625, 237 S.W. 274, 277, the Court, speaking through Judge Lattimore, said:

'The confession of Garcia was admitted in evidence over the objection of appellant. The weight of authority seems in favor of admitting the confession of the principal, where an accomplice is on trial; it being necessary to show the guilt of the principal, and all evidence being admissible whose legitimate tendency is to show such guilt.'

In Waybourn v. State, 113 Tex.Cr.R. 50, 19 S.W.2d 60, Rosa Waybourn was convicted for offering an inducement of $300.00 to one Joe Morales to have her husband killed. She was not present at the time of the killing and did nothing to aid the killer after the murder was committed. There this Court, speaking through Judge Christian, said:

'* * * that Rosa Waybourn * * * prior to the commission of said offense by the said Joe Morales as aforesaid, * * * did unlawfully and willfully promise the said Joe Morales a reward, favor, and inducement, to wit, did promise the said Joe Morales $300 in money, in order to procure the commission of the said offense by the said Joe Morales; the said Rosa Waybourn not being present at the commission of the said offense by the said Joe Morales. * * *

'It was incumbent upon the state, in order to meet the allegations of the indictment, to prove beyond a reasonable doubt that Joe Morales killed deceased in the manner alleged, and that prior to the commission of the said offense appellant promised to pay the said Morales as a reward, favor, and inducement $300 in money in order to procure the commission of said offense.'

This question arose again in Peddy v. State, 118 Tex.Cr.R. 603, 40 S.W.2d 153, in which the Court said:

'It was alleged in the indictment that Dewey Parker committed the offense, and that appellant, not being present at the commission of said offense, and prior to its commission, did unlawfully and willfully furnish arms and aid to said Dewey Parker. It was incumbent upon the state, in order to meet the allegations of the indictment, to prove beyond a reasonable doubt that Dewey Parker committed the offense in the manner alleged in the indictment, and that prior to the commission of said offense, appellant prepared and furnished arms and aid to said Parker for the purpose of assisting in the commission of the offense.'

In Aston v. State, 136 Tex.Cr.R. 12, 122 S.W.2d 1073, 1074, with opinion by Judge Christian, the offense was accomplice to assault with intent to murder. There the Court said:

'It appears that the principal had theretofore been convicted of the offense of assault with intent to murder. The charge of the court merely required the jury to find that he had been convicted of such offense. To warrant a conviction of the accomplice the guilt of the principal must be shown. * * * Stated in another way, to authorize a conviction of one as an accomplice 'the state must prove the commission of the offense by the principal to the same certainty as if the principal were on trial, and therefore beyond a reasonable doubt."

Later in the opinion, the Court said:

'The fact that the principal had been convicted would not have prevented the appellant from seeking to show that he (the principal) was not guilty.'

Finally, in the recent case of Schepps v. State, Tex.Cr.App., 432 S.W.2d 926, 943, Schepps' conviction as an accomplice in the commission of the offense of printing and making a counterfeit cigarette tax stamp was reversed. In an opinion on State's motion for rehearing, we said:

'The State, of course, was required to prove the guilt of the alleged principals in the case at bar in order to convict the appellant as an accomplice, and it was entitled to present all the legitimate evidence it possessed to sustain its burden of proof despite the fact the evidence already presented appeared to have clearly established that element of the offense charged. The State, however, because of its burden of proof, was not entitled to introduce the extrajudicial confessions of three of the alleged principals in violation of the appellant's federal and state constitutional right of confrontation.

'In the case at bar, despite appellant's objections, the State must no effort to show that the appellant had previously been afforded an adequate opportunity to be confronted by and to cross-examine the three principals whose confessions were used and that they were presently unavailable to the State so as to bring the case within the recognized exception to the constitutional right of confrontation.'

Although Schepps, supra, has effectively overruled some of the cases cited above to the extent that they allow introduction of the principal's confession in the trial of the accomplice in violation of the Sixth Amendment right to confrontation, these cases are still authority for the rule that the State must prove beyond a reasonable doubt the guilt of the named principals and that the State may use all competent evidence in doing so. ¹

This, we conclude properly disposes of the first phase of his ground of error number one. As to the second, where the witness testified that the principal had received death as the punishment for his complicity in the offense, we note the following from the record. The State's principal witness was one Delmonte Whitehurst, who had given two statements to the police concerning his complicity in the offense. When called upon by the State's attorney to explain the discrepancies, he stated in effect that at the time the first confession or statement was taken, 'My nephew had already give a statement of committing and being the trigger man and he picked the gun and car. I went along with him. When we went to Newton on cattle theft...