Vodochodsky v. State

158 S.W.3d 502, 2005 Tex. Crim. App. LEXIS 454, 2005 WL 600310

• Court: Court of Criminal Appeals of Texas
• Decided: March 16, 2005
• Docket: AP-74129
• Status: Published

Opinions

OPINION

KEASLER, J.,

delivered the opinion of the Court in which

PRICE, WOMACK, JOHNSON, and HOLCOMB, JJ., joined.

We withdraw our previous opinion and substitute this one. We deny the State’s motion for rehearing.

In February 2001, a jury convicted Kenneth Vodochodsky of killing a peace officer who was acting in the lawful discharge of an official duty.¹ Pursuant to the jury’s answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, §§ 2(b) and 2(e), the trial judge sentenced Vodochodsky to death.² Direct appeal to this Court is automatic.³ Vodo-chodsky raises four points of error. We sustain his second point of error, which alleges that the evidence is factually insufficient. We reverse his conviction and sentence.

A. The Victims

In the early evening hours of October 12, 1999, Atascosa County Sheriffs Deputies Thomas Monse and Mark Stephenson and Texas Department of Public Safety Trooper Terry Miller were ambushed and killed by multiple gunshots. Monse died from eighteen gunshot wounds caused by rifle, shotgun, and handgun fire. Two of his wounds were caused by close range handgun fire to his face. Stephenson died from eleven gunshot wounds caused by rifle and handgun fire. Stephenson also had wounds which were caused by close-range handgun fire to his face. Miller received two wounds from rifle fire. The shot through his head killed him. Several other officers involved in the conflict were also injured.

At the end of the incident, the shooter, Jeremiah Engleton, killed himself with a gunshot wound to his head. Near his body lay an SKS Norenco 7.62 x 39mm semiautomatic rifle, a Mossberg 12-gauge pump-action shotgun, a Ruger 9mm semiautomatic handgun, and a Glock .40-caliber semiautomatic handgun. The police also found a Lorcin .380-caliber semiautomatic handgun in Engleton’s pants’ pocket and a suicide note in his right shoe.

Vodochodsky was subsequently indicted for intentionally or knowingly causing Monse’s death by shooting him with a firearm. The indictment further charged that “the said Thomas Monse was then and there a peace officer ... who was acting in the lawful discharge of an official duty, and [Vodochodsky] knew Thomas Monse was a peace officer.” At trial, the jury was instructed on the law of parties and authorized to find Vodochodsky guilty if they found that he acted “with intent to promote or assist Jeremiah Engleton to commit the offense of capital murder, and did then and there solicit, encourage, direct, aid or attempt to aid Jeremiah Engleton to commit the offense.... ”

B. The Crime Scene

Jeremiah Engleton, his wife Violet, their infant daughter, Violet’s sister Sara Lopez, her two children, and her boyfriend Kenneth Vodochodsky (who had been Engle-ton’s friend since they were small boys) lived in a three-bedroom home in rural Atascosa County just east of Pleasanton. A thickly overgrown field surrounded by a barbed-wire fence sits across Corgey Road to the north of the residence. Two driveways enter the property-from Corgey Road to the north and from Coughran Road to the west. In the field to the north of Corgey Road, the barbed wire fence had been cut, apparently to facilitate the shooter’s movement between the field and the residence. The field was littered with over a hundred spent rifle and shotgun casings, and the police found several locations in the field that appeared to be shooting positions.

Monse and Stephenson were gunned down near their vehicles at the north end of the residence. Miller was shot as he backed his vehicle away from the residence. Others were wounded as they stood behind Miller’s vehicle trying to assess the situation.

C. The Sequence of Events

On October 11, 1999, Engleton came home late in the evening and immediately got into an argument with Violet. He struck her and pointed a gun at her head. Around midnight, in response to Engle-ton’s violent behavior, Violet called the Atascosa Sheriffs Office, and Deputy Monse was dispatched to their residence. About the time Monse was exiting his vehicle, Engleton asked Vodochodsky, “Do you remember what we’ve been talking about? I’m going to do it right now.” According to Sara, Vodochodsky replied, “No, it’s not worth it.” Sara testified that she didn’t ask any questions because she “didn’t want to hear the answers.” She “felt” that Vo-dochodsky knew something but she “didn’t want to hear it out of his mouth.” Monse then arrested Engleton but allowed him to leave Vodochodsky his wallet and $1,000.00 to bail him out the next day. Engleton was booked into jail at 1:10 a.m. on October 12,1999.

Later that morning, Engleton commented to his cellmate, Orlando Garcia, that “[tjhese motherfuckers don’t know what they got coming,” and that it was going to make the front page. Garcia also overheard a telephone call Engleton placed to Vodochodsky, during which Engleton told Vodochodsky to make sure that Violet did not take his “SK” (an SKS Chinese-or Russian-made semi-automatic assault rifle) or his “nine” (a 9 millimeter semiautomatic pistol). Engleton also told cellmate Phillip Darrah that he had been arrested for domestic violence and that when he got out he “had plans and planned to make some headlines.” Darrah also overheard a telephone conversation between Engleton and Vodochodsky during which Engleton asked Vodochodsky to take care of his belongings and specifically mentioned the “SK.” En-gleton also told Vodochodsky to bring the $1,000.00 he left him to make his bail.

While Engleton sat in jail, Sara and Violet moved some of Violet’s property into a storage facility and obtained a restraining order requiring Engleton to vacate the residence by 5:00 p.m. that evening. Shortly after noon, they packed up more of Violet’s property and left for Vo-dochodsky’s parents’ house in’ nearby Floresville.

At 2:12 p.m., Vodochodsky posted En-gleton’s bail. Between 3:30 and 4:30 p.m., the two men went to a Pleasanton gun shop where Engleton purchased several boxes of ammunition. Wayne Balzen testified that he was working at the gun shop the day that Engleton and Vodochodsky came in to buy ammunition. He testified that they came in together but Engleton asked for the ammunition while Vodochod-sky was farther down the counter, “peering and looking at guns.” Engleton asked for a number of different kinds of ammunition, including some “softnose” rounds. Balzen testified that “hardnose” rounds are generally used for target shooting and “softnose” rounds are primarily for hunting. He also testified that Engleton asked for “subsonic” ammunition, which is special because it is “loaded with hydroshock bullets” and is primarily used by law enforcement.

After purchasing the ammunition, Vodo-chodsky and Engleton returned to their residence. Around 5:30 p.m., Sara called the house and Vodochodsky told her that Engleton had left. Sara, Violet, and Vodo-chodsky’s brother Anthony then left Floresville and drove toward the residence. When they arrived, they saw En-gleton’s vehicle and continued on to a grocery store in Pleasanton. Sara then called Vodochodsky again. At first Vodochodsky acted like he was angry because they had not shown up, but then he dropped his voice to a whisper and told Sara not to come home. Instead, he told Sara that he would meet her at Anthony’s house later. Sara and Anthony left Violet with a friend and went to Anthony’s house. After that, the events occurred in the following order:

7:45 p.m. A neighbor, Edward Essary, drove past Vodochodsky’s residence on his way to Wal-Mart. As he passed the residence, he saw Vodo-chodsky loading “stuff’ into his vehicle.

8:07 Police received a “911” call to the Atascosa County Sheriffs Office from Engleton’s home. Vodochodsky was still at the residence.

8:13 Monse and Stephenson were dispatched to the residence.

8:28 Monse arrived at the residence and apparently was immediately shot and killed from a position about 75 feet away, from the field across Corgey Road from the Engleton residence.

8:30 Stephenson arrived.

8:31 Stephenson very faintly radioed in that he had been hit. At approximately this same time, Vodochodsky’s neighbor, Robert Hutton, heard several gunshots. As he sat in his car at the adjacent intersection, Hutton saw two patrol cars on Vodochodsky’s property with their headlights on. He also, noticed that the security light in the back of the residence was off. Further, Hutton noticed a flashlight moving on top of Vodochodsky’s residence and concluded that a person was walking around on the roof. He noted that the individual was on the backside of the pitched roof near the north end of the residence overlooking the deputies’ vehicles. Later, seven fresh shell casings were found behind the house, close enough to the house that it appeared that they had rolled off the roof. After 45 seconds to a minute, Hutton drove away.

8:37 Miller was dispatched to the residence to check on Monse and Stephenson because they could not be reached by radio. Also around this time period, but before Miller arrived at the residence, Essary returned from Wal-Mart. As he passed Vodo-chodsky’s home, he noticed the two deputies’ vehicles in Vodochodsky’s north driveway. After arriving home and putting away his purchases, Es-sary became concerned about the events at Vodochodsky’s house. ■ He then got back in his car and drove toward the house.

8:51 Miller arrived at the residence.

8:52 Miller radioed in “officer down” and requested assistance. As Miller was backing away from the residence in his vehicle, he was shot and killed while still in his vehicle. As Essary approached Vodochodsky’s house, he saw a highway patrol vehicle backing away from the residence and heard gunfire. As Essary passed the residence, he saw a flashlight on the ground at the north end of the residence. Essary turned the corner and made his way to another neighbor’s house.

8:56 Pleasanton Police Department Officer Louis Tudyk arrived at the intersection adjacent to the house. He parked his vehicle behind Miller’s vehicle.

8:57 Retired United States Border Patrol Special Agent Carl Fisher pulled his truck up alongside Tudyk’s vehicle.

8:58 Tudyk and Fisher were shot and wounded.

9:00 Vodochodsky arrived at Anthony’s house, which is located 21.7 miles from his own. He told Anthony that he drove straight there from his house, a trip which should take 21 to 23 minutes depending upon speed and traffic. Vodochodsky told Sara that Engleton was going to kill himself, and that he wanted to watch the news. Sara told Vodochodsky that Engleton’s suicide would not be on television. Sara wanted to go to the residence to help Engleton, but Vodo-chodsky did not want to go. Over Vodochodsky’s objection, Sara called Violet to tell her that Engleton planned to kill himself. Vodochodsky eventually agreed to go to the residence.

10:47 Vodochodsky and Sara arrived at one of the roadblocks attempting to get to the residence, but they were not allowed through. They then went to pick up Violet and returned to Anthony’s house. After arriving at Anthony’s house, Vodochodsky gave Violet a farewell letter from Engleton. Throughout this time period, many other officers arrived at the residence and took part in the standoff. Finally, with the help of officers in a San Antonio Police Department helicopter, ground officers pursued Engleton. Before they reached him, Engleton shot himself in the head and died.

Either the night of the killings or the next day, October 13, Vodochodsky admitted to Sara that he was at the residence when the bogus 911 call was made, but he denied making it himself. Around 2:00 p.m. on October 13, Vodochodsky spoke with Texas Ranger Tony Leal about the events of the previous day. Vodochodsky told Leal that he left his house at 8:00 p.m. the previous evening and drove directly to his brother’s house in Poteet. Vodochod-sky also indicated to Leal that he did not know about Engleton’s plans regarding the night of the murders.

Around 1:00 p.m. on October 14, Vodo-chodsky talked to Essary about the killings. During this conversation, Essary showed Vodochodsky where he had seen the flashlight the night of the killings. In response, Vodochodsky stated, “Yeah, that’s where one of the pigs — that’s probably where one of the pigs got shot at.” Vodochodsky also told Essary that he bailed Engleton out of jail “[t]o do this.” Essary unequivocally told the jury that Vodochodsky made the statement in a tone that indicated that he was proud of his actions.

Vodochodsky told Essary that Engleton wanted to do this the night that the police came to arrest him for assaulting Violet, but Vodochodsky told Engleton, “No, ... we ain’t got nothing planned yet.” Vodo-chodsky told Essary that Engleton was going to kill himself and “take some pigs with him.” Vodochodsky then stated that “that would be less pigs in the world.” Vodochodsky told Essary that, after he bailed Engleton out, the two of them went to the gun store and bought “$200 worth of the best ammo.” He said that, after they returned home, Engleton kept four guns and Vodochodsky loaded the rest in his car as well as some other items “because the police were coming and he took the stuff that they would confiscate.” Along with other weapons, Vodochodsky also took some tools, the “papers” to the house, and the “papers” to Engleton’s boat. When Essary commented about how the police cut up the fence across the street, Vodo-chodsky responded, “No, that’s where [En-gleton] cut it up” and “that’s where he was shooting at.” Vodochodsky further commented to Essary that he knew that En-gleton had gone “over the edge” when he took the deputy’s gun. He also told Es-sary that he was still at the house when Engleton made the 911 call.

Lisa Sandberg, a reporter for the San Antonio Express News, testified that she interviewed Vodochodsky in the spring of 2000. During that interview, he told her that Engleton had been very upset about his arrest and at one point had said that he wanted to kill some deputies. Vodochod-sky said that he had not taken Engleton seriously and had told him, “Don’t worry about it. I’ll get you out of jail.” He said that he had told Engleton, “it’s not worth it.” Vodochodsky told Sandberg that, after he bailed Engleton out of jail, they had gone “to a gun shop where they bought ammunition” to use at a firing range. Vo-dochodsky also told Sandberg that he had not had any “prior knowledge” of Engle-ton’s “plan” and that he had had no idea that Engleton “would use the more than 300 rounds of ammunition to fatally shoot the officers.” Vodochodsky told Sandberg that he left the residence at 7:45 p.m. on the night of the murders. Sandberg also testified that, when she was interviewing him, Vodochodsky asked her what section of the newspaper the article would appear in. When she told him that it might appear on the front page, Vodochodsky said that that was interesting.

Violet Engleton testified that she, En-gleton and Vodochodsky watched the movie “Set it Off’ often, and that they all liked it. In that movie, she testified, four girls rob a bank and then die in a shoot-off with police officers. She testified that Engleton said that that is the way that he would like to die. Sara Lopez also testified that En-gleton and Vodochodsky watched that movie a lot. She testified that when she watched “Set it Off’ with Engleton, he told her that “if he was ever wanted by the law, that’s how he would go out” and that Vodo-chodsky “said the same thing.”

Some time after Vodochodsky was incarcerated, jail personnel found in his possession a note containing numbers and simple mathematical calculations. Beside one number was the word “bond” and beside another number was the word “bullets.”

D. Analysis

In his first point of error, Vodo-chodsky asserts that the evidence is legally insufficient to support the jury’s verdict of guilty of capital murder. In his second point, he asserts that the evidence is factually insufficient. As previously noted, Vo-dochodsky was indicted for intentionally or knowingly causing the death of Thomas Monse, a person he knew to be a peace officer acting in the lawful discharge of his duty, by shooting him with a firearm. After the presentation of evidence, the court charged the jury that it could find Vodo-chodsky guilty if it found that he acted with the intent to promote or assist Engle-ton in committing the offense of capital murder, and Vodoehodsky did then and there solicit, encourage, direct, aid or attempt to aid Engleton in committing the offense. It is well settled, and Vodochod-sky does not contest the rule, that the law of parties need not be pled in the indictment.⁴ Further, Vodoehodsky does not challenge the fact that Engleton intended to kill a peace officer who was acting in the lawful discharge of his duties. Instead, Vodoehodsky contends that he was merely present at the scene and, therefore, cannot be held responsible for Engleton’s acts.

In reviewing the legal sufficiency of the evidence, this Court looks at all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.⁵ In determining whether evidence is sufficient to convict, we must examine the totality of the circumstances.⁶ Texas Penal Code § 7.01(a) states that “[a] person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.” A person is criminally responsible for the conduct of another if “acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense[J”⁷

A rational jury could conclude from this evidence that Vodoehodsky was present during the shoot-out and that he participated in part of it. The evidence established that Engleton was shooting from the field across Corgey Road, approximately 75 feet away, while another person was shooting from the roof of the house. Vodochodsky’s statements about when he left the house were inconsistent-he told Sandberg and Leal that he left before the 911 call was made, but admitted to Sara and Essary that he left after the 911 call had been made. He told Anthony that he had driven from his house directly to Anthony’s house, but it is only a 28-minute drive and he arrived at Anthony’s house at 9:00 p.m. Vodoehodsky was also inconsistent about whether he was aware of the plan to murder police officers, telling Sandberg and Leal that he was unaware of the plan but telling Sara and Essary that he knew of the plan.

The night before the offense, Engleton expressed a desire to “do it right now” and Vodoehodsky told him they did not yet have a plan. A rational jury could conclude from this evidence that Engleton had a plan to kill a peace officer, that Vodochod-sky was aware of Engleton’s plan, and that Vodoehodsky wanted to wait until the plan was foolproof. On the day of the crime, Vodoehodsky bailed Engleton out of jail, later telling Essary that he bailed him out “to do this.” A rational jury could conclude from this evidence that Vodoehodsky bailed Engleton out of jail specifically to carry out the plan to kill peace officers. Knowing that the police were coming and knowing that Engleton intended to commit suicide after his killing spree, Vodoehod-sky took many items from the house. A rational jury could conclude from this evidence that Vodochodsky sought to help Engleton wrap up his affairs as part of his participation in the plan. Finally, Vodo-chodsky commented to Essary after the crime that he knew that Engleton had “gone over the edge” when he took the deputy’s gun. A rational jury could conclude from this evidence that Vodochodsky was still at the residence and witnessed at least Monse’s murder, despite any claims to the contrary.

In light of this evidence, we hold that a rational jury could have found beyond a reasonable doubt that Vodochodsky acted with an intent to promote or assist Engle-ton in committing this offense. Point of error one is overruled.

In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if “proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by. contrary proof.”⁸ In conducting such a review, we consider all of the evidence weighed by the jury, comparing the evidence which tends to prove the existence of the elemental fact in dispute to the evidence which tends to disprove it.⁹ We are authorized to disagree with the jury’s determination even if probative evidence exists which supports the verdict, but we must avoid substituting our judgment for that of the fact-finder.¹⁰

In this case, the overwhelming weight of the evidence mitigates against the conclusion that Vodochodsky solicited, encouraged, directed, aided or attempted to aid Engleton in committing the offense. All of the evidence that could legally support a rational jury’s conclusion is nevertheless so weak that our confidence in the jury’s verdict is undermined. Although there was some evidence of a second shooter on the roof, this was not established. While Vodoehodsky’s statements were inconsistent, the inconsistencies were minor. When Engleton expressed a desire to “do it right now” and Vodochodsky told him they did not yet have a plan, neither man specifically mentioned killing a peace officer. When Vodochodsky told Essary that he bailed Engleton out of jail “to do this,” he did not specifically state that he bailed him out as part of a plan to kill police officers. Vodochodsky removed belongings from the house, but there is no proof that he did so as part of a murderous plot. And Vodochodsky’s comment to Essary that Engleton had “gone over the edge” when he took the deputy’s gun could just as reasonably have been a speculative comment, not one indicating that Vodochodsky had witnessed Monse’s murder.

Indeed, none of that evidence necessarily suggests that Vodochodsky acted with intent to promote or assist Engleton. None of his statements directly refer to killing police officers. His statements are devoid of information on the details of the alleged murder plot, and there is no other information in the record suggesting that Vodochodsky was planning the event with Engleton.

Furthermore, other evidence suggests that Vodochodsky was not working with Engleton. His whispered warning to Sara could indicate that while he may have known of Engleton’s plan, he was not a party to it. He did not participate in the purchase of ammunition. There is no evidence that Vodochodsky actually did any affirmative act to assist Engleton with the plan. Instead, Vodochodsky had the bad luck of being the friend and roommate of a man determined to kill police officers and himself.

We conclude that proof of Vodochod-sky’s guilt was so weak as to undermine confidence in the jury’s determination. This evidence was factually insufficient to convict. Point of error two is sustained.

We reverse the judgment of the trial court and remand this case for Vodochod-sky to answer the charges in the indictment.

KELLER, P.J., filed a dissenting opinion in which MEYERS, J., joined. COCHRAN, J., filed a concurring opinion. HERVEY, J., did not participate.

1 . Tex. Penal Code Ann. § 19.03(a)(1).

2 . Art. 37.071, § 2(g). Unless otherwise indicated this and all future references to Articles refer to the Code of Criminal Procedure.

3 . Art. 37.071, § 2(h).

4 . Marable v. State, 85 S.W.3d 287 (Tex.Crim.App.2002)(and cases cited therein).

5 . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Griffin v. State, 614 S.W.2d 155, 159 (Tex.Crim.App.1981).

6 . See Denton v. State, 911 S.W.2d 388, 389-90 (Tex.Crim.App.1995); Miller v. State, 667 S.W.2d 773, 776 (Tex.Crim.App.1984); Rucker v. State, 599 S.W.2d 581, 591 (Tex.Crim.App.1979); Reynolds v. State, 506 S.W.2d 864, 867 (Tex.Crim.App.1974). See also Garcia v. State, 887 S.W.2d 862, 870 (Tex.Crim.App.1994).

7 . Tex Penal Code § 7.02(a)(2).

8 . Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000); see also Goodman v. State, 66 S.W.3d 283, 285-86 (Tex.Crim.App.2001).

9 . Johnson, 23 S.W.3d at 7.

10 . Id.; Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App.1997).