Appeal from Harris County
Mike DeGeurin, Dick DeGuerin, Houston, for appellant.
John B. Holmes, Jr., Dist. Atty., Carol S. Vance, Former Dist. Atty., William W. Burge, Robert Bennett, and Timothy G. Taft, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before Onion, P. J., and Roberts and Clinton, JJ. Before the court en banc.
Appeal is taken from a conviction for the offense of accomplice to murder with malice aforethought under our former penal code.*fn1 Upon the jury's return of a verdict of guilt, the trial court assessed appellant's punishment at 35 years confinement.*fn2
The indictment returned against appellant alleged,
"Bobby Wayne Vandiver and Marcia McKittrick on or about the 24th day of September, A.D. 1972, in said County and State did with malice aforethought kill John Hill by shooting him with a gun.
And the Grand Jurors aforesaid do further present in and to said court that Lilla Paulus on or about the 24th day of September, A.D., 1972, prior to the commission of the said offense by the said Bobby Wayne Vandiver and Marcia McKittrick as aforesaid, in the County of Harris and State of Texas, did unlawfully and willfully advise, command, and encourage the said Bobby Wayne Vandiver and Marcia McKittrick to commit said offense, the said Lilla Paulus not being present at the commission of the said offense by the said Bobby Wayne Vandiver and Marcia McKittrick...."
The sufficiency of the evidence is challenged.
Viewed in a light most favorable to the jury's verdict of guilt, the evidence reflects the first of a crucial sequence of events forming the context of this case to have been the death of Houston socialite and equestrienne Joan Robinson Hill in February of 1969. During Mrs. Hill's illness and immediately preceding her death, a long time friend, Dianne Settegest,*fn3 was a house guest in the Hill home in River Oaks. Eventually, suspicion regarding Joan Robinson Hill's death fell on her husband, Dr. John Hill, a prominent plastic surgeon. Among the witnesses who testified in May of 1970 before a Harris County grand jury in connection with the abstruse death was Dianne Settegest. During this trip to Houston, Settegest stayed with Ash Robinson and his wife, "Ma," the parents of the deceased woman, their only child.
John Hill was indicted for murdering his wife and brought to trial in January of 1971. During the trial, Dianne Settegest stayed with another close friend in Houston, Lilla Paulus,*fn4 our appellant, at the latter's home on Underwood Street, and appellant attended a portion of the trial when Settegest testified.
The prosecution of Dr. John Hill ended in a mistrial. A second trial was to commence in the late fall of 1972 and it was Settegest's assumption she would stay with appellant again at that time.
Marcia McKittrick testified that she met appellant in January, 1972, at "either the (Houston) airport or her home"-she didn't remember which, but believed it to be the airport-and on that day or the next, went to appellant's home on Underwood;*fn5 according to McKittrick, she thereafter stayed at appellant's home "many times," whenever she was in Houston from the time she met appellant until the time of completion of the offense alleged here. McKittrick, a prostitute by trade, "worked" while in Houston at the William Penn Hotel under the alias "Dusty." Appellant was aware of her profession and asked McKittrick not to bring her "men friends" to the house, with which request McKittrick complied.
At "some time" during McKittrick's stay with appellant, the latter asked McKittrick if she knew of anyone interested "in filling a contract," meaning a killing. McKittrick agreed to make inquiries. Thereafter, McKittrick met Ash Robinson at appellant's home and appellant later told her that Robinson was the one who wanted a contract filled on Dr. John Hill. McKittrick did not know who John Hill was. She testified that she thereafter saw Ash Robinson at appellant's house "several times."
In "the spring or early summer of 1972" on a trip to Dallas McKittrick mentioned the contract to her "chip,"*fn6 Bobby Vandiver, an admitted robber. Two weeks "or so" later, she introduced Vandiver to appellant at the house on Underwood in Houston. According to McKittrick appellant asked Vandiver if he were interested in the "contract" for $5,000.00, and stated she would receive her money from the same unmentioned source as Vandiver. Vandiver agreed and they discussed details. Later McKittrick and Vandiver decided to "forget it" and returned to Dallas. Late in the summer, appellant called Vandiver at his sister's house in Dallas and told him the contract was on again and "... what had gone wrong was right again." McKittrick and Vandiver returned to Houston, and several weeks before September 24, 1972, appellant took them on at least three occasions to the Hill home on Kirby Drive in River Oaks, discussing Hill's routine and mentioning the people who were normally there. McKittrick also claimed that on occasion, she was with appellant when she met Ash Robinson at Ben Taub Hospital in Houston, but she stayed in appellant's car while appellant would sit in Robinson's car or they would walk. McKittrick, however, was not privy to any conversation, but on several occasions it appeared to her that Robinson handed money to appellant.
McKittrick further testified that prior to September 24, 1972, appellant told Vandiver the money was to come from Ash Robinson because Robinson was convinced that Hill would never be convicted of causing his daughter's death and that this was the only way he could get justice. Appellant gave McKittrick and Vandiver a coffin shaped picture of Hill. In an effort to locate Hill, McKittrick made phone calls from appellant's home with her knowledge to Seattle and to Las Vegas. Unable to locate Hill, McKittrick and Vandiver drove to Las Vegas in an effort to find him "a few days before" September 24th. Still unable to locate Hill, they returned to Houston where appellant told them that Hill was to return the next day but that Ash Robinson did not know on which flight. Appellant informed McKittrick that Ash Robinson had given her $7,000.00.
On the morning of September 24, 1972, McKittrick saw Robinson at appellant's home and he stated that Hill would have $15,000.00 on his person. McKittrick testified appellant had the arrival times for the National Airlines flights from Las Vegas on that day, but she didn't know which flight Hill would be on; McKittrick called the ticket agent for National Airlines and learned Hill was due to arrive in Houston at 6:38 p. m. McKittrick related she and Vandiver then estimated the time it would take a taxi to come from the airport; at about 7:00 p. m. they drove to the Hill home.
Vandiver knocked on the door and entered the house; McKittrick drove the car to the House of Pies on Kirby Drive and waited for him to call on the pay phone as planned.
Inside the house on Kirby, Vandiver encountered the 12 year old son and mother of his intended victim. He bound and gagged these witnesses, then apparently thereafter masked himself*fn7 and waited for Dr. Hill's arrival. Hill and his wife, Connie, had just returned to Houston via National Airlines from a trip to Seattle, San Francisco and ultimately a medical convention in Las Vegas. At approximately 7:30 p. m., they arrived by taxi at their home.
Immediately the Hills confronted the masked Vandiver who announced "this is a robbery." Hill and Vandiver struggled and Connie Hill ran for help. Vandiver fled after fatally shooting Hill four times with a .38 caliber pistol supplied by McKittrick.
In the interim, McKittrick had waited an hour when Vandiver telephoned and said there had been a "rumble." She picked him up at a Stop and Go convenience store and they returned to appellant's home. There appellant gave Vandiver $5,000.00 and he returned $1,500.00-$1,000.00 for steering him to the job and $500.00 for the advance she had given to them for his and McKittrick's trip to Las Vegas.
McKittrick related she and Vandiver then left for Dallas where they learned from television news reports the pistol used had been recovered from some bushes near the Hill home.
Regarding the quantum of proof the State was obliged to adduce in the instant case, Article 38.14, V.A.C.C.P. directs:
"A conviction cannot be had upon the testimony of an accomplice*fn8 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."
In appellant's trial, the jury was correctly instructed that Marcia McKittrick was, as a matter of law, an accomplice witness. Thus, though the State may have established every element of the offense alleged against appellant through the testimony of McKittrick, the law insists that unless there is evidence independent of her testimony which tends to connect appellant with the commission of that offense, the evidence as a whole must be deemed insufficient. Article 38.14, supra, Walker v. State, 615 S.W.2d 728 (Tex.Cr.App.1981).*fn9
Because of both the nature of the offense charged against appellant-accomplice to murder-and the reliance by the State on "cumulative circumstances" to supply the corroboration of McKittrick's testimony regarding appellant's conduct and criminal liability, the instant case is uncommonly complex and will in time necessitate application of legal principles not always involved in reviewing the sufficiency of the corroboration of an accomplice witness. But the established yardstick against which all such evidence is to be broadly measured is as was first articulated in Edwards v. State, 427 S.W.2d 629, 632 (Tex.Cr.App.1968):
"The test as to the sufficiency of the corroboration is to eliminate from consideration the evidence of the accomplice witness and then to examine the evidence of other witnesses with the view to ascertain if there be inculpatory evidence, that is evidence of incriminating character which tends to connect the defendant with the commission of the offense. If there is such evidence, the corroboration is sufficient; otherwise it is not." (Citations omitted.)*fn10
This independent inculpatory evidence necessary for corroboration need not be direct, but may be circumstantial, for "(a)pparently insignificant circumstances sometimes afford most satisfactory ... corroboration of an accomplice's testimony." Holmes v. State, 70 Tex. Crim. 423, 157 S.W. 487, 493 (1913).*fn11 Thus, because the State is not obliged to adduce some isolated fact which within itself is sufficient corroboration, "(i)t is the combined and cumulative weight of the evidence furnished by nonaccomplice witnesses which supply the test." Minor v. State, 108 Tex. Crim. 1, 299 S.W. 422 (1927).*fn12
This Court has held the Article 38.14, supra, requirement that the nonaccomplice witness evidence "tend( ) to connect the defendant with the commission of the offense," does not mean the corroborative evidence must establish every material or criminative fact alleged against the accused; indeed, if it did, such would be tantamount to requiring that evidence to independently establish guilt, thus vitiating the value of accomplice witness testimony.*fn13 But as a corollary, it is equally well settled that it matters not the slightest how thorough the corroboration of the accomplice witness may be in regard to facts related by him which are extraneous or immaterial to the criminal responsibility of the defendant ; "unless there is some proof, independent of his testimony, tending to connect the defendant with the commission of the crime, there is no sufficient corroboration." Chambers v. State, 44 S.W. 495, 495 (Tex.Cr.App.1898).*fn14
And what is meant by the "offense committed?" In the instant case, appellant stood charged with being an "accomplice to murder with malice aforethought." In 1907, this Court, through Presiding Judge Davidson, observed that where a party is charged as an accomplice to an offense,
"... (I)t is in the nature of a compound offense: First, he must have done those things denounced by the statute in bringing about a subsequent offense (advise, command, encourage); and second, that that offense must be consummated. There would be no offense, unless the offense in contemplation was subsequently committed."
Hall v. State, 52 Tex. Crim. 250, 106 S.W. 379, 380 (1907). Restated in somewhat more contemporary language,
"One charged as an accomplice ... by advising the commission of a subsequent offense in advance of its commission, does not become an accomplice until the substantive offense is committed; that is to say, if in the present case the appellant advised the burglary he would not be guilty as an accomplice unless the burglary was committed."
Graves v. State, 123 Tex. Crim. 226, 58 S.W.2d 122, 124 (1933). Thus, an accomplice to the crime has completed his criminal act before the object crime is actually committed, but his criminal liability attaches only after its commission, by virtue of his previous conduct in bringing the object offense about through the agency of third parties. Chapman v. State, 470 S.W.2d 656 (Tex.Cr.App.1971); Graves, supra; Weatherred v. State, 100 Tex. Crim. 199, 272 S.W. 471 (Tex.Cr.App.1925); Hall, supra.
So, when the accused is charged as an accomplice to an offense, and the State relies on the testimony of an accomplice witness,*fn15 "the testimony must not only be corroborated as to the fact that the offense was committed, but must be corroborated with equal cogency that the party accused as an accomplice (to the crime) brought himself within the purview of the statute in his advice or assistance." Hall, supra, 106 S.W. at 380. Thus, in the instant case it was encumbent upon the State to proffer corroboration of McKittrick's testimony both that John Hill was murdered, and that appellant Paulus, before the murder, advised, commanded or encouraged McKittrick and Bobby Vandiver to commit that murder.
With these principles in mind, we now turn to an assessment of the sufficiency of the State's corroborative evidence tending to connect appellant with the criminal conduct alleged.
Initially we note the evidence corroborating the murder of Dr. John Hill by Bobby Vandiver is ample and need not be further assayed. Equally sufficient independent evidence was adduced to corroborate McKittrick's admission that she furnished the murder weapon to Vandiver. Thus, the only remaining question is whether the record reflects evidence tending to connect appellant with the culpable conduct alleged against her -that is, advice, command or encouragement to McKittrick and Vandiver to commit the murder before it was done-and thus corroborative of McKittrick's assertions in this regard.
The State argues that when all the nonaccomplice witness evidence is considered, it corroborates appellant's role in the murder of Hill, and specifically points to the facts that appellant was shown to be a close associate of McKittrick at the time of the offense; that appellant therefore had the opportunity to advise and encourage commission of the murder; that appellant was acquainted with Ash Robinson and aware that he wanted Dr. Hill killed; and, the fact that a piece of paper was found in the search of appellant's house on which had been written the times of arrival of National Airlines flights from Houston to Las Vegas, Las Vegas to Houston and the roundtrip fare. These flight schedules were shown to have been in effect for approximately three years, including both the time of the offense and the time of trial. Several handwriting experts*fn16 testified that it could not be determined whether the flight schedules and roundtrip fare notations were in the hand of appellant. Appellant's estranged daughter, Mary Wood, insisted, however, they were in her mother's handwriting.
Mary Wood also supplied the testimony the State contends illustrated appellant's "knowledge that Ash Robinson wanted Dr. Hill killed:" according to Wood, in December of 1970, she heard her mother tell her father that Dianne Settegest had told her that she had heard Ash Robinson say he was looking for someone to kill Hill. Both Settegest and appellant denied this and appellant called her son who testified that not only was Wood never in appellant's home in December of 1970, but no one in the family knew where she was at that time. At any rate this evidence was hopelessly incompetent to prove that Ash Robinson wanted Hill killed. Neither are we prepared to say this third-hand report was (other than for the "truth of the matter asserted") for the purpose of illustrating appellant's "state of mind," for the content of appellant's statement was a mere repetition of something someone else claimed to have heard! At best, that she repeated the report might be admissible as a prior "declaration of a party" inconsistent with her denial of knowledge about Robinson. But even treating Wood's testimony as competent corroborative evidence, we fail to see in what manner such constitutes an incriminating factor which, taken together with all the nonaccomplice witness evidence, tends to connect appellant with the commission of the offense alleged. Compare Reynolds v. State, 489 S.W.2d 866 (Tex.Cr.App.1973).
The State offered several items-such as telephone records which revealed calls made from appellant's home phone on November 16, a week before the murder: two to Seattle, Washington airlines and two to the Las Vegas Star Dust Hotel, and a message found in appellant's home which was for McKittrick-apparently to illustrate McKittrick's proximity to appellant prior to the murder. But appellant never denied and, in fact, readily conceded the accomplice witness had lived with her. Thus, the telephone records served merely to directly corroborate McKittrick's testimony that she and Vandiver were having difficulty locating their intended victim.
Appellant testified that she knew "of" Ash Robinson, but that he was not a personal acquaintance. She denied ever having had a private conversation with him, claiming she only knew him on sight and through horse show circles. This too, was hotly contested by the parties*fn17 and suffice it to say, some degree of connection or acquaintanceship between appellant and Ash Robinson was shown by the nonaccomplice witness evidence. But even if the State had proved appellant and Robinson were intimate associates, to assign incriminating significance to such fact would require that we first assume Ash Robinson's involvement in the plan to murder Hill; Robinson's involvement was not established, however, apart from the testimony of McKittrick.
While surely not intended as a confession of error, the State's brief suggests that "(t)he corroborating evidence in the case at bar is significant when tied to McKittrick's testimony." We are constrained to agree. But the validity of this statement defeats the State's position in this case, ...