Gosch v. State

829 S.W.2d 775, 1991 Tex. Crim. App. LEXIS 281, 1991 WL 264601
CourtCourt of Criminal Appeals of Texas
DecidedDecember 18, 1991
Docket69,726
StatusPublished
Cited by190 cases

This text of 829 S.W.2d 775 (Gosch v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gosch v. State, 829 S.W.2d 775, 1991 Tex. Crim. App. LEXIS 281, 1991 WL 264601 (Tex. 1991).

Opinions

OPINION

McCORMICK, Presiding Judge.

A jury found appellant, Lesley Lee Gosch, guilty of capital murder, and answered penalty issues one and two in the affirmative. The death penalty was assessed as punishment. Now before this Court appellant raises five points of error. We will affirm the conviction.

We begin by addressing appellant’s claim that the evidence is insufficient to corroborate an accomplice’s testimony. Appellant was indicted for the offense of capital murder; in pertinent part the indictment reads as follows:

“[0]n or about the 18th day of September, A.D., 1985, LESLEY LEE GOSCH, hereinafter called defendant, did then and there intentionally cause the death of an individual, namely: REBECCA SMITH PATTON, hereinafter called complainant, by shooting the said complainant with a handgun and the said defendant did then and there intentionally cause the death of the said complainant while in the course of committing and attempting to commit the offense of KIDNAPPING upon REBECCA SMITH PATTON”

State’s witness, John Lawrence Rogers, had also been indicted for the capital murder of Rebecca Patton. The State’s case [777]*777against Rogers was pending at the time of trial. Appellant specifically asserts that the record is devoid of any evidence to corroborate the testimony of Rogers. We disagree.

Article 38.14, V.A.C.C.P., provides that “[a] conviction cannot be had upon the testimony of an accomplice 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.” 1 The test for deciding whether there is sufficient corroboration “is to eliminate from consideration the evidence of the accomplice witness and then to examine the evidence of the 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.” Edwards v. State, 427 S.W.2d 629 (Tex.Cr.App.1968). See also Reed v. State, 744 S.W.2d 112, 125 (Tex.Cr.App.1988). The corroborative testimony need not directly link the accused to the crime or be sufficient in itself to establish guilt. Richardson v. State, 700 S.W.2d 591, 594 (Tex.Cr.App.1985); Castaneda v. State, 682 S.W.2d 535, 537 (Tex.Cr.App.1984).

All facts, both direct and circumstantial, may be examined in ascertaining whether sufficient corroboration exists. Reed, 744 S.W.2d at 126. If the combined cumulative weight of the other incriminating evidence tends to connect the accused with the commission of the offense, then the mandate of Article 38.14 has been fulfilled. See Jackson v. State, 745 S.W.2d 4, 13 (Tex.Cr.App.), cert. denied, 487 U.S. 1241, 108 S.Ct. 2916, 101 L.Ed.2d 947 (1988); Reed, 744 S.W.2d at 125; Mitchell v. State, 650 S.W.2d 801, 807 (Tex.Cr.App.1983), cert. denied 464 U.S. 1073, 104 S.Ct. 985, 79 L.Ed.2d 221 (1984); Pinson v. State, 598 S.W.2d 299, 302 (Tex.Cr.App.1980); Edwards, 427 S.W.2d at 632.2 An analysis of the accomplice and non-accomplice testimony is necessary in the case before us to ascertain if there is anything of an incriminating character which tends to connect appellant to the murder of Rebecca Patton other than the testimony of John Rogers.

Accomplice Testimony

The accomplice witness, Rogers, was a long-time acquaintance of appellant. At some point in 1984, Rogers lived with appellant and appellant’s girlfriend, a woman named Georgina. In August of 1985, appellant told Rogers that he was concerned about going to federal prison on a weapons violation conviction. Appellant felt that it would not be “constructive” for him to be imprisoned for this offense and sought to have Rogers aid him in fleeing the country. The two originally planned to rob a bank but Rogers rejected this alternative as “too risky and too violent.”

The two then discussed a second alternative — that being kidnapping and ransoming the wife of a bank president. Appellant informed Rogers that he knew of two potential targets in the Alamo Heights area of San Antonio and, in the latter part of August of 1985, appellant began to focus on a specific target for his extortion scheme. In the latter part of August or early September of 1985, appellant first mentioned the name of Frank Patton as a potential target for the extortion plan.

Approximately two weeks later, Rogers and appellant began to formalize their scheme. They drove by the Patton home in early September to ascertain whether the plan could be completed safely. In mid-September appellant and Rogers began to take steps to carry out their plans. They planned that appellant was to gain access to the Patton home under the guise of delivering flowers to Rebecca Patton. After entering the home, appellant was to [778]*778bind his victim with duct tape and then take her to a secluded, rural area of Bexar County. Rogers’ role was to go to North Star Mall and wait for Frank Patton to arrive with a ransom payment. Originally, this scheme was to begin on September 16, 1985.

On September 15, 1985, appellant and Rogers made a dry run by the Patton residence. On September 16, at approximately 8:80 a.m., Rogers picked up appellant at the Windsor Park Mall’s “Park and Ride.” The two then drove to a Stop and Go convenience store located in the 500 block of Austin Highway near Alamo Heights. There Rogers purchased a soft drink along with a pastry and appellant bought a carton of milk. After leaving the store, Rogers and appellant drove around the Pat-tons’ neighborhood to determine whether there was much activity on the streets and whether Rebecca Patton’s automobile was parked at the home.

While driving around the neighborhood, Rogers began having second thoughts. Rogers felt that they should carry out their plan another day because of problems with his car. Appellant was angered by Rogers’ position; nevertheless, he agreed to cancel plans for that day. The two agreed to try again the next day, September 17, 1985. Rogers and appellant then left Alamo Heights.

On the 17th of September, Rogers again rendezvoused with appellant at the Park and Ride. The pair once again drove to the same Stop and Go convenience store on Austin Highway. Once again Rogers’ lack of courage and his misgivings about his automobile caused the operation to be postponed. The two agreed to try the next day.

On September 18th, Rogers once again met appellant at the Park and Ride. They once again visited the Stop and Go convenience store on Austin Highway. Rogers and appellant then returned to the Pattons’ neighborhood. After satisfying themselves that Mrs. Patton was at home, the two drove to Rogers’ apartment so that appellant could change his shirt. At Rogers’ apartment, appellant changed out of a camouflage shirt and into a blue one belonging to Rogers’ one-time roommate, Stephen Hurst. Rogers made a phone call (at approximately 10:30 a.m.) to the Patton residence to determine if Mrs. Patton was home alone. Rogers also called the bank where Mr. Patton worked. Rogers was informed that Mr. Patton was in a meeting; Rogers stated that he would call back. After calling the bank, Rogers and appellant returned to Alamo Heights.

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Cite This Page — Counsel Stack

Bluebook (online)
829 S.W.2d 775, 1991 Tex. Crim. App. LEXIS 281, 1991 WL 264601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gosch-v-state-texcrimapp-1991.