Doty v. State

585 S.W.2d 726, 1979 Tex. Crim. App. LEXIS 1542

• Court: Court of Criminal Appeals of Texas
• Decided: June 27, 1979
• Docket: 56429
• Status: Published

Opinions

OPINION

W. C. DAVIS, Judge.

Following a conviction for attempted capital murder where a jury assessed punishment at twenty-eight years confinement, appellant brings forward nineteen grounds of error.

In his initial ground of error, appellant challenges the sufficiency of the indictment to allege the offense of attempted capital murder. Appellant argues the indictment is fundamentally defective because it alleges only criminal solicitation, omitting the act of attempt: an act amounting to more than mere preparation, but failing to effect the commission of the intended offense. V.T.C.A. Penal Code, Sec. 15.01.

The indictment reads as follows:

“. . . did unlawfully, attempt to cause the death of Linda Faye Doty, in that the said defendant was employing for remuneration and promise of remuneration Bobby L. Curtis by knowingly and intentionally offering one thousand five hundred dollars ($1,500.00) current money of the United States of America to Bobby L. Curtis paid and promised to be paid to kill Linda Faye Doty by shooting her with a sawed-off shotgun . .” (Emphasis added)

Clearly, this is a “murder for hire” indictment; an indictment for attempted capital murder under the “employment” provision of V.T.C.A. Penal Code, Sec. 19.03(a)(3). Murder for remuneration under Sec. 19.-03(a)(3) involves, at a minimum, three individuals: (1) principal, (2) agent, and (3) victim. The interaction of these individuals is very simple. The principal hires the agent to kill the victim. In such a relationship, the only act required of the principal is the hiring of the agent. Once the employment “contract” is made and consideration passes, there is more than mere preparation. In fact, once such a contract of employment exists, the principal has completed his role and may be guilty of capital murder or attempted capital murder, depending on the success of his agent.

Therefore, if the language of the indictment indicates or alleges the existence of this “employment contract,” it sufficiently alleges an act by the principal — appellant going beyond mere preparation. Such an allegation must, however, be more than a promise to pay in the future. In Hobbs v. State, 548 S.W.2d 884 (Tex.Cr.App.1977), we held the following language insufficient:

“That Joyce Hobbs on or about the 25th day of July, A.D. 1975, ... did then and there attempt knowingly to cause the death of James Leon Hobbs, by promising remuneration to wit: promising to pay Virgil McCuller $100.00 to kill the said James Leon Hobbs by shooting him with a gun.”

While a future promise to pay in exchange for the murder of an individual is within V.T.C.A. Penal Code, Sec. 19.03(a)(3), the Hobbs indictment does not allege any acts by the employer, other than preparation to pay in the future. Such an allegation is not a criminal attempt. V.T.C.A. Penal Code, Sec. 15.01.

In appellant’s case, the indictment language alleged that appellant “ ‘was employing for remuneration’ Bobby L. Curtis,” which indicates a present and existing employment agreement beyond a future promise to pay. This language indicates that appellant had acted in some manner to create a contract to have the victim killed. Reading further, the indictment alleges the consideration for this contract in both the past and future tenses: “. . . paid and promised to be paid . . Thus, the indictment alleges a contract of employment whereby the victim was to be killed and alleges payment by appellant as an act beyond mere preparation. Therefore, while not a model indictment, these allegations satisfy V.T.C.A. Penal Code, Sec. 15.01 and Sec. 19.03(a)(3) and sufficiently allege attempted capital murder.

Having determined the indictment sufficient, we turn to the dispositive issue which is contained in appellant’s ground of error number four. The issue therein presented is the sufficiency of the evidence to support the conviction for attempted capital murder. Appellant urges that there is a variance between the evidence adduced and the allegations in the indictment. We agree.

The indictment alleges as the act beyond preparation, payment of money from appellant to an undercover officer. The State then was obliged to prove payment. However, the testimony of the undercover police officer shows no payment was made. At one point, the officer testified as follows:

“Q. And you testified earlier that he had a wad of money on him?

A. Yes, sir, that’s correct.

Q. Money far in excess of a thousand dollars, didn’t he?

A. Yes, sir.

Q. And he didn’t give you one cent?

A. No, sir, he did not.

Q. He didn’t give you a sawed off shotgun did he?

A. No, sir, he did not.”

At another point, the testimony was:

“Q. ... he didn’t do anything about giving you any money out front?

A. No, sir, he didn’t give me any.

Q. Not a cent, did he?

A. No, sir.”

The State argues that appellant provided a photograph of the victim and certain addresses, and these are acts beyond preparation. The remuneration aspect of murder for hire is an essential element and must be proved. Here, the State alleged payment as the act of criminal attempt and thus imposed upon itself the burden to establish payment. Having failed to do so, the evidence adduced is insufficient to support the allegations in the indictment. Commons v. State, 575 S.W.2d 518 (Tex.Cr.App.1979); Armstrong v. State, 573 S.W.2d 813 (Tex. Cr.App.1978).

The judgment is reversed and prosecution ordered dismissed. Burks v. U. S., 437 U.S. , 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).