Schwenk v. State

733 S.W.2d 142, 1987 Tex. Crim. App. LEXIS 616
CourtCourt of Criminal Appeals of Texas
DecidedJune 24, 1987
Docket61084
StatusPublished
Cited by15 cases

This text of 733 S.W.2d 142 (Schwenk 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
Schwenk v. State, 733 S.W.2d 142, 1987 Tex. Crim. App. LEXIS 616 (Tex. 1987).

Opinions

[143]*143OPINION

CLINTON, Judge.

This is an appeal from a conviction for the offense of criminal solicitation1 in which the jury assessed punishment is seven years confinement.

The sufficiency of the evidence is challenged.

Viewed in a light most favorable to the jury’s verdict of guilt, the evidence reflected that undercover police officers David Galindo and David Sheetz received information on or about July 5, 1976 from an unidentified informant which resulted in Galindo’s receipt of a telephone call from appellant on or about July 12,1976. In this conversation, appellant advised Galindo he “wanted somebody to disappear.” In a second conversation appellant indicated the intended victim was his wife and informed Galindo of her work and home addresses. A contract price of $8,000 was discussed. In a third conversation, appellant advised Galindo he would only pay $2,000. Galindo suggested that they meet and discuss the matter face to face.2 Appellant agreed to bring $1,500 to the meeting so Galindo could count it. On July 26, 1976, appellant and Galindo met behind a lounge.3 According to Galindo’s testimony:

“I told [appellant] that I had a cousin that was going to help me on this thing.
* * * * * *
Q: What did you tell the Defendant, Gary Schwenk, that your cousin was to do in regards to doing away with his wife?
******
A: I told him that I was going to need some help and my cousin would have to help me from San Antonio.
* * * * * *
Q: And did you tell him how your cousin was to help you?
A: No. 1, to be sure that the money was covered. That was his job, to be sure the money was there.
Q: Was your cousin, as you stated to Gary Schwenk, also to help with the killing of his wife?
* * * # # *
A: Yes sir. * * * He was to help kill his wife.
Q: Now, I believe I heard on the tape, but let me ask you, please sir, did you tell the Defendant how you were going to do away with his wife?
A: Yes, sir. * * * Overdose. O.D.”4

Galindo testified that his “cousin” was in fact his partner in this undercover operation, Officer David Sheetz.

The record does not reveal how appellant's presence was obtained, but on July 28, 1976, he met David Sheetz for the first time in the parking lot of Northline Bank. According to Sheetz, the purpose of the meeting was as follows: “Mr. Schwenk had two thousand dollars that he was going to pay me — excuse me, put in a safety deposit box for killing his wife.” At the parking lot, according to Sheetz,

“I approached [appellant]. * * * I started off, walked up to the pickup and asked him, I said, ‘Are you Gary,’ at which time he replied, ‘Yes, I am.’ He asked if I was Darrell— * * * and I stated I was.”

[144]*144Sheetz testified that he and appellant discussed how the latter was to be contacted after “we had killed his wife” and the two then entered the bank in order to rent a safety deposit box. Inside the bank, Sheetz paid the $5.00 rental fee and a deposit box was taken out in both appellant’s name and Sheetz’s alias, “Darrell Scott;” only “Darrell Scott,” however, signed the paper work. The two were then taken to their safety deposit box and shown how to open it. According to Sheetz,

“[Appellant] removed it from his pocket, counted out the two thousand dollars, placed it in the safety deposit box, locked the box. And [the bank employee] gave Mr. Schwenk both keys and we left the bank.”

Upon leaving the bank, appellant was arrested.

On cross examination Sheetz testified that a recording made of his meeting with appellant “didn’t come out very clear” and conceded there was nothing in his police report to indicate appellant had hired him, Sheetz, to kill his wife. So, on redirect examination, the prosecutor began,

“Q: When you first did see the Defendant ..., to go over this one more time, so that I am sure, did you have a conversation as to your participation in the actual murder of his wife?
A: Yes, sir, I did.
Q: And what did you tell him that you were going to do?
A: We told Mr. Schwenk that she would be killed by an overdose. I had the reputation of being a dope dealer and a killer out of San Antonio. And, to make it look as if it was accidental, we would fix her with an overdose.”

In the trial court’s instructions to the jury, appellant's conviction was authorized as follows in salient part:

“Now, if you should find... beyond a reasonable doubt that on or about the 28th of July, 1976, ... the defendant, Gary Lee Schwenk, did intentionally or knowingly, with intent that capital murder be committed, request, command and attempt to induce D. B. Sheets [sic] to kill Carol Schwenk for remuneration and promise of remuneration, then you will find him guilty of criminal solicitation to commit capital murder as charged in the indictment.”5

On appeal, appellant contends that at best, the evidence demonstrates his awareness of Galindo’s engaging Sheetz to participate in the scheme to kill Carol Schwenk, but that nowhere in the record is there any evidence that he, appellant, actively solicited Sheetz’s involvement as is alleged in the indictment; “mere acquiescence,” appellant argues, is not the same as “commanding, requesting and attempting to induce” which was the conduct required under the charge of the court to justify his conviction.

The State’s response is to recount the evidence as we have done ante, then conclude: “There is nothing in the record to suggest anything but that [appellant] believed Sheetz to be the ‘doper’ who he had requested and induced to kill his wife for $2,000.00.” But this is not responsive to appellant’s contention that the proscription against “criminal solicitation” contemplates active, initiative conduct on the part of one who is to be held criminally culpable thereunder.

The Practice Commentary to V.T.C.A. Penal Code, § 15.03, observes that § 15.03, supra, introduces a new offense to Texas law which “applies to a narrow area of conduct very close to the beginning of a criminal enterprise and may be thought of as an ‘attempted’ conspiracy.” Indeed, it is because criminal solicitation “reaches so far back into preparatory conduct, ” that it applies only to the most serious offenses, viz: capital and first degree felonies. The Practice Commentary sets out an instructive example, juxtaposing criminal solicitation with the other preparatory offenses denounced by Texas law:

“The nature and scope of Section 15.03 may be illustrated by a case in which A solicits B to kill C. If B agrees to do so, and either A or B acts in furtherance of the agreement, both A and B are guilty [145]*145of conspiracy.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bien v. State
550 S.W.3d 180 (Court of Criminal Appeals of Texas, 2018)
Fiala, John Martin v. State
Court of Appeals of Texas, 2013
Alfredo Juan Tobar v. State
Court of Appeals of Texas, 2009
Reister, Roger v. State
Court of Appeals of Texas, 2003
Carlock v. State
8 S.W.3d 717 (Court of Appeals of Texas, 2000)
Justin Wayne Carlock v. State
Court of Appeals of Texas, 1999
Caldwell v. State
971 S.W.2d 663 (Court of Appeals of Texas, 1998)
Sterns v. State
862 S.W.2d 687 (Court of Appeals of Texas, 1993)
Sheffield v. State
847 S.W.2d 251 (Court of Appeals of Texas, 1992)
Ivatury v. State
792 S.W.2d 845 (Court of Appeals of Texas, 1990)
Robinson v. State
764 S.W.2d 367 (Court of Appeals of Texas, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
733 S.W.2d 142, 1987 Tex. Crim. App. LEXIS 616, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schwenk-v-state-texcrimapp-1987.