Moncier v. State , 1986 Tex. App. LEXIS 12392 ( 1986 )

STEPHENS, Justice.

Daniel Dewayne Moncier appeals his conviction of burglary of a habitation. In three grounds of error he contends: (1) the only witness connecting him to the offense was an accomplice witness as a matter of law, and that her uncorroborated testimony was inadmissible, (2) the submission to the jury during the punishment stage of the trial, over his timely objection, of whether a deadly weapon was used or exhibited during the commission of the offense violated due process because the indictment contained no allegation of a deadly weapon, and, (3) that there was no evidence to support the submission of the question of the use of a deadly weapon. We disagree with each contention, and accordingly, we affirm his conviction.

At about 3:00 a.m. on the morning of March 21, 1984, appellant, accompanied by co-defendant Timothy Kitchens, and Dianna Mitchell, awakened the occupant of a trailer house situated in a trailer park in Frisco, Texas, by beating on the door and demanding admittance. The occupant called the police. The occupant testified that the person outside began tearing the door off the hinges, trying to get into her trailer. As the person broke into the trailer, the occupant fled through a rear door. When the police arrived, they searched the premises and adjoining area. Co-defendant Kitchens was apprehended walking down a creek bank in an area close to the location of the alleged burglary. Dianna Mitchell was found in the van parked near the trailer house hiding under some covers. Appellant was arrested in a trailer house where he had asked permission to use the telephone.

The crucial question is whether Dianna Mitchell was an accomplice witness as a matter of law. Her uncorroborated testimony is the only evidence connecting appellant to the commission of the crime. Consequently, if, as a matter of law, she is an accomplice witness, her uncorroborated testimony will not support the conviction, and appellant must be acquitted.

TESTIMONY OF DIANNA MITCHELL

Dianna Mitchell was 19 years of age at the time of trial. At the time of the alleged offense she was living with her mother and stepfather in- an apartment in McKinney, Texas. She testified that around midnight on March 21, 1984, Moncier and Kitchens drove to her apartment in a van. She went outside and Moncier asked her if she wanted to make $500. She asked how, and was told that all she had to do was to go up to a door, knock on it, turn around, and get back in the van. She was given no more details. Needing the money, she decided to go along with Kitchens and Moncier. She went back into the apartment, got her shoes, came back out, got into the van and the three drove away.

They drove around for a while, then went to Moncier’s apartment where he went inside for about fifteen minutes. When he came out they drove around a while longer, then went to Kitchen’s house. Both Moncier and Kitchens got out and went into Kitchen’s house and then into the garage. They brought out a white bag and put it into the van. Mitchell could not see what was in the bag. Moncier, at this time, had on an army green belt with little pouches in it. He put a small stuffed toy into one of the pouches, saying that it would make it look like it contained a grenade. Mitchell saw some little blue shotgun shells come out of the pouch. They then went to Robert Kitchens’ house and Timothy Kitchens went inside for about 30 minutes. Moncier and Mitchell waited in the van. No discussion was had at this time about their plans. Kitchens exited the house with a white styrofoam box and placed it in the back of the van.

Kitchens then said they were going to the “country.” They started the van and drove toward Frisco, Texas. She asked why they were driving up and down the road, and both said they were trying to find a lab. According to Mitchell, this was the first time any explanation, as to their plans, was given. Moncier said they were going to go “hit two dykes.” Dianna was asked by the prosecutor if she recalled the exact words that either of them said to her when they first explained to her what they were going to do. She answered:

A. DeWayne told me, “I can tell you now that it’s too late.”

Q. He said—

A. “I can tell you not it’s too late.” He said, “I can tell you now because it’s too late for you to get out.” He said, “We're going to go hit two dykes.”

Shortly after this conversation, appellant stopped the van, both men got into the back, opened the styrofoam box, took a broken down rifle from it and started putting it together. This was the first time Mitchell had seen a rifle.

After assembling the rifle, the three drove to a trailer park and parked within a few feet of a trailer house. All three got out of the van and approached the trailer. Mitchell testified that she stepped up on a wooden step and knocked on the door. The two men were standing with their backs to the trailer, one on each side of the door, where they could not be seen by the occupants of the trailer. The following testimony was developed:

Q. [Prosecutor, Ms. Springer] Okay. As you stood on the bottom step of those steps in front of that door, that trailer, with DeWayne Moncier on one side of you with a rifle in his hand and Timothy Kitchens on the other side of you, both of them standing with their backs against the trailer and one of them with — excuse me, both of them with bandanas across their faces, what was going through your mind?

A. [Mitchell] What am I doing here?

Q. Were you frightened?

A. Very.

Q. Did you want to be where you were right then?

A. No.

Q. Why didn’t you leave?

A. It was too late for me to back out.

Q. Well, what do you mean by that?

A. I was already there.

Q. What do you think would have happened if you just turned around and left, walked away?

MR. CHAPMAN: Objection, calls for speculation.

THE COURT: Overruled.

Q. (By Ms. Springer) What do you think would have happened if you had walked away from that trailer right then?

A. I have no idea.

Q. Were you frightened of any particular circumstance in particular? I’m sorry, I’m repeating myself. Were you frightened of anything in particular?

A. I was scared of them because I didn’t know what they would have done.

TEX.PENAL CODE ANN. art. 7.02(a)(l)(2) (Vernon 1974) provides that a person is criminally responsible for an offense committed by 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.

From the evidence recited, as well as the other evidence adduced at trial, a strict construction of the statute would require a determination that Dianna Mitchell was an accomplice witness as a matter of law. However, the cases have consistently held that where there is any doubt as to whether a witness is an accomplice, even though the evidence preponderates in favor of a conclusion that the witness is an accomplice as a matter of law, the proper procedure is to submit the matter to a jury. Harris v. State, 645 S.W.2d 447, 454 (Tex.Crim.App.1983); Brown v. State, 640 S.W.2d 275, 279 (Tex.Crim.App.1982); Carrillo v. State, 591 S.W.2d 876, 882 (Tex.Crim.App.1979); Amey v. State, 580 S.W.2d 836, 839 (Tex.Crim.App.1979); Colunga v. State, 527 S.W.2d 285, 287 (Tex.Crim.App.1975); Van Buskirk v. State, 492 S.W.2d 279, 281 (Tex.Crim.App.1973); Crew v. State, 675 S.W.2d 787, 788 (Tex.App.-Dallas 1984, pet. ref’d); Hill v. State, 666 S.W.2d 130, 133 (Tex.App.-Houston [14th Dist.] 1983, no pet.); Shanks v. State, 643 S.W.2d 150, 153 (Tex.App.-El Paso 1982, pet. granted).

This long line of cases reflect the proper procedure to be followed. In this case there was doubt in the mind of the trial judge, which was borne out by his submission of the matter to the jury, and that doubt was set to rest by the finding of the jury that the witness, Dianna Mitchell, was not in fact an accomplice witness. For this court to hold that the witness was an accomplice witness as a matter of law would violate the jury system, by substituting our judgment for the judgment of the jury. We did not view the witness, nor observe her demeanor on the witness stand. We hold that the evidence is inconclusive that Dianna Mitchell was an accomplice as a matter of law. Appellant’s ground of error is overruled.

Appellant argues, in his second ground of error, that the trial court erred by submitting a special issue at the punishment stage of the trial, over his timely objection, as to whether a deadly weapon was used or exhibited during the commission of the offense. He contends that this submission violated his right to due process because the indictment contained no allegation of a deadly weapon. We disagree.

Appellant’s precise contention under this ground of error is that a finding that appellant used or exhibited a deadly weapon during the commission of the offense subjects him to a greater punishment because, under TEX.CODE CRIM.PROC.ANN. art. 42.12, sec. 15(b) (Vernon 1979), his period of incarceration is extended for a greater length of time before he becomes eligible for parole. Thus, he contends, he is entitled to notice in the charging instrument that the State intends to seek an affirmative finding that a deadly weapon was used or exhibited in the commission of the offense.

We are not unmindful of the recent opinion of the Texas Court of Criminal Appeals in Polk v. State, 693 S.W.2d 391 (1985). In the Polk case the court sat en banc. Judge Miller wrote for the majority, Judge Clinton concurred with written opinion, Judge Teague concurred in part and dissented in part, with written opinion, and Judge Onion concurred without written opinion.

Judge Clinton, in his concurring opinion, expresses the following philosophy:

... a threshold problem presented by the factual situation in this cause and every other one in which the charging instrument does not expressly allege that a weapon said to have been used or exhibited is a “deadly weapon.” When denial of grant of probation by a trial court and deprivation of freedom and liberty by extended confinement in a penitentiary hang on that very question, due process and due course of law require that the trier of fact at any stage of trial on criminal action not be authorized to make an adverse finding against an accused unless and until the issue has been tendered by the pleading of the State.

693 S.W.2d at 397.

Judge Teague considers the majority opinion to be advisory, yet believes that the question of notice should be answered. He expresses the opinion that the Texas Constitution guarantees a defendant the right to demand the nature and cause of action against him, and while recognizing that the finding of the use or exhibition of a deadly weapon during the commission of a crime does not enhance the punishment, it nevertheless extends the time when the defendant will become eligible for parole. He agrees with Judge Clinton that notice must be given in the charging instrument. 693 S.W.2d at 399-400.

Judge Miller’s majority opinion recognizes Judge Clinton’s concurring opinion in footnote 4, 693 S.W.2d at 396:

The concurring opinion by Clinton, J., would require “notice” in the form of a formal pleading in the indictment before entry of such a finding would be proper. Such a requirement may well add an element to whatever offense was alleged, a reasonable doubt about which would lead to a not guilty verdict. Cf. Tew v. State, 551 S.W.2d 375 (Tex.Crim.App.1977); Rounsavall v. State, 480 S.W.2d 696 (Tex.Crim.App.1972); Romay v. State, 442 S.W.2d 399 (Tex.Crim.App.1969); and Wheat v. State, 442 S.W.2d 363 (Tex.Crim.App.1969). This is a valid impediment to such a requirement. Moreover, the corpus of what we are dealing with is eligibility for parole, not what the penalty range or sentence will be. Though not raised in this case, the “notice” requirement of the due process clause of both the 5th and 14th Amendments of the U.S. Constitution and the due course of law clause in Art. 1, § 19 of the Texas Constitution must be examined in that light when properly before us.

Although the Texas Court of Criminal Appeals has not addressed the precise question presented in this appeal, the United States Supreme Court and the United States Court of Appeals for the Fifth Circuit have.

In Greenholtz v. Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), the United States Supreme Court considered the question of a person’s due process rights in discretionary parole release. The Court stated that in order to obtain a protectable right under the due process clause

... a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.

Greenholtz, 442 U.S. at 8, 99 S.Ct. at 2103-2104 (quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972)).

The Court went on to hold:

There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence. The natural desire of an individual to be released is indistinguishable from the initial resistance to being confined. But the conviction, with all its procedural safeguards, has extinguished that liberty right: ‘[G]iven a valid conviction, the criminal defendant has been constitutionally deprived of his liberty.’ Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976).

Greenholtz, 442 U.S. at 8, 99 S.Ct. at 2104. See Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 464, 101 S.Ct. 2460, 2464, 69 L.Ed.2d 158 (1981).

The Court recognized that a State's parole statute could create a liberty interest protected by due process guarantees, 442 U.S. at 13, 99 S.Ct. at 2106, but held that the possibility of parole provides no more than a mere hope, and that such hope is not protected by due process. 442 U.S. at 12, 99 S.Ct. at 2105.

In Rummel v. Estelle, 445 U.S. 263, 294-95, 100 S.Ct. 1133, 1149, 63 L.Ed. 382 (1980), the Supreme Court stated that parole was “simply an act of executive grace.” The Court noted that while a State “may create legitimate expectations that are entitled to procedural protection under the Due Process Clause of the Fourteenth Amendment,” the Texas parole statute does not create such a cognizable interest. 445 U.S. at 295, 100 S.Ct. at 1149.

The United States Court of Appeals for the Fifth Circuit, in Williams v. Briscoe, 641 F.2d 274 (5th Cir.1981), analyzed the Texas parole statute, comparing it with the Nebraska statute in question in Green-holtz. The court found that the Texas parole statute could not reasonably be taken to encourage the expectancy of the right to parole. 641 F.2d at 277. The court concluded:

We hold that the Texas Adult Probation, Parole and Mandatory Supervision Law, Tex.Code Crim.Proc. art. 42.12 (Vernon 1979), does not create that protectible expectancy of release recognized by the Supreme Court in Greenholtz.

Id. See Johnson v. Wells, 566 F.2d 1016, 1018 (5th Cir. 1978); Craft v. Texas Board of Pardons and Paroles, 550 F.2d 1054, 1056 (5th Cir.1977).

Upon the authority of these cases, we conclude that eligibility for parole under TEX.CODE CRIM.PROC.ANN. art. 42.12 (Vernon 1979) is not a protectible interest under the due process clause. The statute does not enlarge the punishment for the crime or affect the range of punishment that the jury may assess. The State need not allege “use or exhibition of a deadly weapon” in the indictment before an affirmative finding can be made by the trier of fact under TEX.CODE CRIM. PROC.ANN. art. 42.12 (Vernon 1979). Appellant’s ground of error is overruled.

In his final ground of error, appellant contends there is no evidence to support the submission of the issue of use or exhibition of a deadly weapon. We disagree. Having concluded that Mitchell was not an accomplice as a matter of law, her testimony is sufficient evidence to support the submission of the issue. Mitchell testified that appellant was carrying a rifle when they approached the trailer house. She also testified that she later noticed Kitchens had a pistol and used it to tap on the window of the trailer. The fact that Kitchens and Moncier never had an opportunity to brandish, threaten to use, or actually discharge the weapons does not mean that they did not “use” the weapons. United States v. Moore, 580 F.2d 360, 362 (9th Cir.) cert. denied, 439 U.S. 970, 99 S.Ct. 463, 58 L.Ed. 430 (1978); See United States v. Grant, 545 F.2d 1309, 1312-13 (2d Cir.1976) cert. denied, 429 U.S. 1103, 97 S.Ct. 1130, 51 L.Ed.2d 554 (1977); United States v. Mason, 658 F.2d 1263, 1270-71 (9th Cir.1981). There was evidence that Kitchens and Moncier set out to rob a methamphetamine lab and armed themselves with the weapons. These weapons “increased the likelihood of success; without them [they] probably would not have sallied forth.” Moore, 580 F.2d at 362.

We conclude there was sufficient evidence to support the submission of the issue to the jury. The ground of error is overruled. The judgment is affirmed.

GUITTARD, C.J., and DEV ANY, GUIL-LOT, MALONEY, McCRAW, VANCE and ZIMMERMANN, JJ., join in the majority opinion. AKIN, J., concurs with majority without opinion. HOWELL, J., dissents with opinion. WHITHAM, J., concurs in Justice HOWELL’S dissent with opinion. McCLUNG, J., joins in Justice WHIT-HAM’s concurring opinion to Justice HOWELL’S dissenting opinion.