Vodochodsky, Kenneth

  IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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NO. AP-74,129

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KENNETH VODOCHODSKY, Appellant

v.

THE STATE OF TEXAS

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ON DIRECT APPEAL

FROM COUNTY

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Keller, P.J., filed a dissenting opinion in which MEYERS, J., joined.

O P I N I O N  

   The Court withdraws its opinion on original submission and substitutes an opinion that addresses matters raised in the State's motion for rehearing, and the Court denies rehearing. I believe the better course would be to grant rehearing before issuing the new opinion, but in keeping with the Court's action, I withdraw my previous opinion and substitute this one.

Two things are basically required to establish liability as a party under §7.02(a)(2): (1) intent to promote or assist the offense and (2) an act that solicits, encourages, directs, aids, or attempts to aid in the commission of the offense. ⁽¹⁾ Both of these elements are shown in the present case. Appellant's culpable intent was shown by his own admissions. According to Essary, on the night of Engleton's arrest, appellant told Engleton not to do anything because "we don't have anything planned yet." Appellant admitted to his girlfriend and to Essary that he knew, before the events, that Engleton was going to commit suicide and kill police officers. His girlfriend's testimony further shows that appellant saw Engleton's guns laid out in preparation for this event. Essary's testimony indicates that appellant was present when Engleton made the 911 call and that appellant also knew that Engleton had cut the fence. Essary also testified that appellant said he bailed Engleton out of jail "to do this" and that appellant sounded proud when he said it. When challenged by defense counsel on whether appellant could have been in shock when he made that statement, Essary maintained that appellant said it proudly.

Appellant's admissions and circumstantial evidence indicate that appellant performed acts that encouraged or aided the commission of the crime. Essary testified that appellant "Said they went to the gun store and bought $200 worth of the best ammo." That testimony indicates that appellant was a participant in buying the ammunition even if that participation was not apparent to the proprietor of the store. That appellant participated in buying the ammunition is also supported by a handwritten note retrieved by the jail librarian from a book appellant had checked out and later turned in. This note contained numbers that added up to $2000, including $200 for bond and $200 for bullets. The evidence also indicated that appellant was with Engleton for several hours. When talking about that time to Ranger Antonio Leal, appellant became nervous and asked for a cigarrette. He told Leal that he and Engleton watched "Saving Private Ryan," starting at 5:30, but Leal thought that was unlikely because the movie was three hours long. From appellant's admitted knowledge of Engleton's activities and his attempts to cover up his own involvement, the jury could have rationally inferred that appellant participated in helping Engleton set up the scene for the subsequent confrontation.

Moreover, there is circumstantial evidence that appellant was still at the scene when deputies Monse and Stephenson were killed. Appellant told Essary that Engleton made a mistake in taking Deputy Monse's gun - a fact that, two days after the offense - did not appear to be widely publicized. Moreover, at least one officer testified that it takes approximately twenty-three minutes to drive from Engleton's residence to Anthony Vodochodsky's residence. There was evidence that appellant arrived at Anthony's residence at approximately 9:00 p.m. Since the deputies arrived at 8:28 and 8:30, and their murders occurred shortly after that, appellant could have observed or even participated in those events. At about that time, a passerby saw on the roof a shining flashlight, which could have been carried by appellant. Because Trooper Miller did not arrive until 8:51, there could have been as much as twenty minutes after the deputies' deaths before appellant left the scene of the crime.

In its motion for rehearing, the State points out the irony of this Court's conclusion that appellant's warning to Sara to stay away was exculpatory, indicating that "while he may have known of Engleton's plan, he was not a party to it," ⁽²⁾ when just two weeks later we cited a similar warning as evidence supporting a capital murder conviction. ⁽³⁾

I believe the evidence was legally and factually sufficient to support the conviction. I respectfully dissent from the Court's judgment reversing the conviction and from its decision to deny the State's motion for rehearing.

KELLER, Presiding Judge

Date filed: March 16, 2005

Publish

1. "A person is criminally responsible for an offense committed by 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."

2. Vodochodsky v. State, 2004 Tex. Crim. App. LEXIS 663, at 18 (April 21, 2004); see also Court's op. at 15.

3. Ross v. State, 133 S.W.3d 618, 621 (Tex. Crim. App. 2004). Ross did not have an accomplice, but that factual difference does not seem to me to be sufficient to convert a plainly incriminating fact into an exculpatory fact.