dissenting.
Finding myself in disagreement with the other members of the court, I would like to record my respectful dissent.
In his first ground of error, appellant contends the trial court erred in overruling his motion for an instructed verdict of not guilty since “the evidence required to corroborate the accomplice witness testimony was legally insufficient to corroborate both the solicitation itself and the appellant’s intent that the accomplice act on the solicitation as required by Sec. 15.03(b) V.A.P. C.” I agree.
The appellant was indicted for criminal solicitation under the authority of Tex.Penal Code Ann. § 15.03(a) (Vernon 1974). It states:
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.
Subsection (b) of the same statute instructs the prosecution and the court as to what is required for corroboration purposes if an attempt is made to base a conviction on testimony from an accomplice witness. It reads:
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.
It is obvious that Section 15.03(b) is analogous to Tex.Code Crim.Proc.Ann. art. 38.-14 (Vernon 1974) which requires that a conviction based on accomplice witness testimony must contain corroborating evidence from an independent source that tends to connect a defendant to the crime. Saunders v. State, 572 S.W.2d 944 (Tex.Crim.App.1978). This statute is a general statute that applies to all such situations while § 15.03(b) is limited specifically to matters involving criminal solicitation. In order to understand the significance of the dictates of § 15.03(b), a statute with limited precedent, one must first analyze its forerunner, Article 38.14.
Article 38.14 requires that the corroborating evidence tend to connect a defendant to the crime and it is not sufficient if the evidence merely shows the commission of the offense. The evidence must go to the main issue of the crime. However, if the gravamen of the offense involves more than one essential element, then the corroborating evidence must connect the defendant to each of the essential elements. Cagle v. State, 505 S.W.2d 858 (Tex.Crim.App.1974); Fortenberry v. State, 579 S.W.2d 482 (Tex.Crim.App.1979).
The test to determine sufficiency of the corroboration of the testimony from an accomplice witness is to eliminate the evidence of the accomplice from consideration and then examine evidence of other witnesses and from other sources to ascertain if there be inculpatory evidence of incriminating character which tends to connect the accused to commission of the offense. If there is such evidence, the corroboration is sufficient, otherwise it is not. Cherb v. State, 472 S.W.2d 273 (Tex.Crim.App.1971).
Understanding the abovementioned principles of Art. 38.14, it becomes easy to understand the dictates of § 15.03(b). A reading of § 15.03(b) indicates that the legislature incorporated these same principles into its mandates by requiring that the corroborating evidence that connects the primary actor to the crime be strongly cor*689roborative of both the solicitation itself and the actor’s intent that the other person act on the solicitation. The Practice Commentary that precedes the Title 4 offenses interprets this subsection of the Code as requiring corroboration of both the making of the solicitation and that its making was in earnest.
This analysis makes sense because the gravamen of the offense of criminal solicitation is that one must request, command or attempt to induce another to engage in specific conduct and that this solicitation was made with the intent that a capital felony or first degree felony be committed. Therefore, these are the matters that must be corroborated. Further, it should be noted that the statute requires that the corroborating evidence must be strongly corroborative of both such matters. The use of the term “strongly” in the statute would indicate that the legislature intended for the corroborating evidence under § 15.03(b) to be more than evidence that just tends to connect the defendant to the crime as prescribed by Art. 38.14.
In the present case, Hancock testified that the appellant solicited him to kill Harris for money. The matters that must be corroborated are that appellant requested, commanded, or attempted to induce Hancock to kill Harris and that appellant intended that capital murder be committed. In order to test the sufficiency of this corroboration, we must completely disregard Hancock’s testimony and examine the remaining evidence to determine if it meets the standards of § 15.03(b).
The State is relying on the tape recording to supply the necessary corroboration. Disregarding Hancock’s testimony, we are left with the tape recorded conversation where appellant is discussing some form of activity in order to make money. There is only one slight reference to Harris made during the conversation. Appellant told Hancock that he had not heard about the condition of Harris and that if he was seriously injured that Hancock’s bail would be $50,000 instead of $10,000, and that his attorney would check into the situation later. The tape contains nothing that is incriminating with regard to appellant soliciting Hancock to kill Harris for money. It corroborates nothing.
The fact that Harris was a potential witness against appellant in a criminal case does not prove that appellant hired Hancock to kill him. A motive might be a significant piece of corroborating evidence, but by itself it is not sufficient. The evidence considered in connection with the tape is still insufficient to corroborate testimony that appellant requested, commanded, or attempted to induce Hancock to kill Harris and that this solicitation was made with the intent that capital murder be committed.
Excluding Hancock’s testimony and considering all the remaining evidence collectively, the strongly corroborative requirement of Section 15.03(b) is not met.
Accordingly, I would sustain appellant’s first ground of error and reverse the judgment of the trial court. Double jeopardy law bars reprosecution of a criminal case in which the evidence at trial was insufficient as a matter of law. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).