Powell v. State

808 S.W.2d 102, 1990 Tex. App. LEXIS 3203, 1990 WL 265148
CourtCourt of Appeals of Texas
DecidedOctober 24, 1990
DocketNo. 08-89-00063-CR
StatusPublished
Cited by5 cases

This text of 808 S.W.2d 102 (Powell v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Powell v. State, 808 S.W.2d 102, 1990 Tex. App. LEXIS 3203, 1990 WL 265148 (Tex. Ct. App. 1990).

Opinion

OPINION

OSBORN, Chief Justice.

This is an appeal from a conviction for the offense of solicitation of aggravated robbery with an affirmative finding of the use of a deadly weapon. The court assessed punishment at twenty years’ imprisonment. We reform and affirm as reformed.

In Point of Error No. One, the Appellant asserts that there is insufficient evidence to support the conviction. At trial, G.W. Hillger testified that the Appellant approached him with regard to robbing the acting treasurer of the Odessa chapter of the Veterans of Foreign Wars as he took the organization’s deposits to the bank. Hillger stated that the Appellant did the planning and was to drop Hillger off and then pick him up after the witness had completed the robbery. One robbery attempt occurred on June 6, 1988, but it was foiled when the intended victim failed to appear. Hillger then went to the district attorney’s office and revealed the robbery plan. At subsequent meetings with the Appellant, the witness was wired for sound which fed into a video tape camera situated in a nearby van.

The offense of criminal solicitation is found in Tex.Penal Code Ann. § 15.03 (Vernon 1974):

(a) A person commits an offense if, with intent that a capital felony or felony of the first degree be committed, he requests, commands, or attempts to induce another to engage in specific conduct that, under the circumstances surrounding his conduct as the actor believes them to be, would constitute the felony or make the other a party to its commission.
(b) A person may not be convicted under this section on the uncorroborated testimony of the person allegedly solicited and unless the solicitation is made under circumstances strongly corroborative of both the solicitation itself and the actor’s intent that the other person act on the solicitation.

The Appellant’s sole complaint is that there is insufficient corroborative evidence of the solicitation. His specific complaint is that the video tapes were inadequately authenticated with regard to the voice and time identification. The Appellant contends that, absent the tapes, there is no corroboration of Hillger’s testimony.

The statement of facts contains a transcription of the audio portion of the video tapes. Although they were admitted into evidence, the actual tapes have not been made part of the appellate record. The court reporter noted the time and date of the occurrence of each tape as it was [104]*104played. In the transcription, the three voices are identified as voice no. 1, voice no. 2 and voice no. 3. It is readily apparent from the content of the transcription which individual is talking. Ronnie Watson, the tape operator, stated that he was familiar with the Appellant’s voice and he identified it as being on the tape. G.W. Hillger, who had known the Appellant for a number of years, identified the Appellant’s voice on the tape as well as his own and that of another individual named Don Vaughn. Voice identification is a competent means of identification. Locke v. State, 453 S.W.2d 484 (Tex.Crim.App.1970). We find that the voices were sufficiently identified. Point of Error No. One is overruled.

In Point of Error No. Two, the Appellant contends that the court erred in making an affirmative finding that a deadly weapon was used during the commission of the instant offense. The indictment read, in pertinent part:

[I]ntentionally and knowingly, with intent that a felony of the first degree be committed, namely, the Aggravated Robbery of James Williams, request and attempt to induce G.W. Hillger to engage in specific conduct that, under the circumstances surrounding the conduct of G.W. Hillger as the defendant, ARTHUR LEE POWELL, SR., believed them to be, would constitute Aggravated Robbery, and such specific conduct was as follows, to-wit: the said defendant did intentionally and knowingly request and attempt to induce the said G.W. Hillger to threaten and place James Williams in fear of imminent bodily injury and death in the course of committing theft of property, with the intent to obtain or maintain control of the property, and to use and exhibit a deadly weapon, namely a firearm, ....

At the close of evidence, during the punishment stage of trial, the court made an affirmative finding of use of a deadly weapon and that finding is reflected in the judgment. The issue was not submitted to the jury at the guilt-innocence stage of trial. The Appellant asserts that he did not receive sufficient notice that this issue was to be a fact issue at trial. The State maintains that the wording of the indictment provided adequate notice.

Accused persons are entitled to notice in some form that the use of a deadly weapon is to be a fact issue at the time of the prosecution, if the State intends to pursue the entry of a deadly weapon finding pursuant to Tex.Code Crim.Pro.Ann. art. 42.12, § 3g(a)(2) (Vernon Supp.1990). Ex parte Beck, 769 S.W.2d 525 (Tex.Crim.App.1989). This notice is most appropriately given, in some form, in the indictment. Ex parte Patterson, 740 S.W.2d 766 (Tex.Crim.App.1987). The State must provide sufficient notice that the weapon alleged is a deadly weapon and that the use of a deadly weapon would be an issue in the State’s prosecution. Ex parte Beck, 769 S.W.2d 525 (Tex.Crim.App.1989). There must be some form of notice given where there is no allegation in the indictment of death or serious bodily injury being caused by a weapon, but there will be evidence at trial that the defendant used or exhibited a weapon in the commission of the offense. Id. at 527. The Court of Criminal Appeals has held that the term “used ... a deadly weapon” during the commission of an offense means that the deadly weapon was employed or utilized in order to achieve its purpose. “Exhibited a deadly weapon” means the weapon was consciously shown or displayed during the commission of the offense. Patterson v. State, 769 S.W.2d 938 (Tex.Crim.App.1989). Further, in situations where the defendant is a party to the offense, there must be a specific finding by the trier of fact that the defendant himself used or exhibited the deadly weapon. Travelstead v. State, 693 S.W.2d 400 (Tex.Crim.App.1985).

In the present case, we find that the Appellant did not receive adequate notice. While there is an averment of the use and exhibition of a deadly weapon in the indictment, it alleges that the Appellant requested and attempted to induce someone other than himself to use and exhibit the deadly weapon. As an affirmative finding of use or exhibition of a deadly weapon cannot apply to a party to an offense unless he personally utilized the weapon, the allega[105]*105tions in the indictment are insufficient to provide adequate notice.

When the court made its ruling with regard to the affirmative finding, the Appellant did not lodge an objection.

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Bluebook (online)
808 S.W.2d 102, 1990 Tex. App. LEXIS 3203, 1990 WL 265148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/powell-v-state-texapp-1990.