dissenting.
The pertinent part of V.T.C.A. Penal Code, § 15.03(b), at issue here is underscored:
“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.” 1
The Houston (14th) Court of Appeals read § 15.03(b) “in conjunction with” Article 38.14, V.A.C.C.P.—
“to require no more than that there must be evidence, other than the testimony of the accomplice ‘tending to connect the defendant with the offense committed’ plus circumstances which strongly corroborate the solicitation itself (as testified to by the accomplice) and that the solicitation was made in earnest.”
Richardson v. State, 681 S.W.2d 683, 686 (Tex.App. —Houston (14th) 1984). That reading gives effect to the “unless” clause.
Now, the majority would have “plus” and “strongly corroborate” mean simply “some additional safeguard ... that the corroboration go to both the solicitation and the solicitor’s intent.” Draft opinion, p. 6. As if by magic it has made the qualifying term “strongly” disappear. As thus interpreted the clause now reads—
“and unless the solicitation is made under circumstances corroborative of both the solicitation itself and the actor’s intent ...”
Since the two key elements of the offense are “solicitation itself” and solicitor’s “intent,” the latter being “the very heart of the offense,” under Article 38.14 the special rule followed in cases such as Fortenberry v. State, 579 S.W.2d 482 (Tex.Cr.App.1979), is that the usual charge on accomplice witness testimony is “not always sufficient,” and “in directing the minds of the jury as to the law” the charge must state “that the very basis of the offense charged must be corroborated.” Id., at 485-486. In its brief before this Court the State acknowledges verity of the special rule. Brief, pp. 7-8. That being the applicable rule under Article 38.14, the interpretation suggested in the majority opinion is not “some additional safeguard; ” it renders § 15.03(b) wholly ineffective in accomplishing what the Legislature patently intended by the very language used. Even the court of appeals gave the clause more effect than is proposed today.
*596However, both the majority opinion and the court of appeals have overlooked another facet of § 15.03(b) which is most important: the requirement that it be shown “the solicitation is made under circumstances strongly corroborative ” of the solicitation and of the solicitor’s intent. It is that requirement that the second sentence in that portion of Practice Commentary (quoted in the majority opinion at page 6) interprets, viz:
“Furthermore, there must be circumstances corroborating both the making of the solicitation and that its making was in earnest.”
The requirement goes well beyond corroborating just the testimony of an accomplice witness by evidence “tending to connect the defendant with the offense [of criminal solicitation],” as provided in Article 38.14, supra.2 In this kind of case, given the evidentiary requirements imposed by “unless” clause, the majority opinion errs in stating at page 6, “It is not necessary' that the corroboration'directly link the defendant with the crime ...” The essence of criminal solicitation consists of the solicitation with requisite intent, both of which the Legislature has provided shall be “strongly corroborated” by independently proved circumstances. Certainly corroboration must directly link an accused to those two critical elements of the offense.
The testimony of Harris relates his transaction with appellant, his reporting the matter to police and filing charges and the fact that he was subpoenaed to be a witness in the resultant case, and it corroborates the attempt on his life as told by Hancock. But it does not go beyond suggesting a motive to solicitation itself or an intent on the part of appellant that Hancock act on a solicitation. Without more Harris is only saying that Hancock tried to kill him by cutting his throat.
While there may be sufficient evidence to show that appellant had a motive to prevent Harris from testifying, the State necessarily must and obviously did rely on content of the recorded telephone conversation between Hancock and appellant to show the solicitation itself. Looking for “sufficient evidence tending-to connect appellant to the commission of the offense,” the court of appeals found four features of the conversation had probative value. Richardson v. State, supra, at 686. Their worth must be assayed in context of the personal relationship between Hancock and appellant, however.
As the court of appeals found, they were neighbors in a trailer park,' and became acquainted in March or April; by June they were seeing each other “on a daily basis” and doing some work together. Indeed, Hancock admitted that in those days he was “pushing” marihuana for appellant in order to get money “going to feeding and to the house.”3
That appellant (‘readily accepted Hancock’s collect call” is consistent with their friendship and relationship. Admonishing Hancock that his phone was “tapped” was equally a caution not to talk about their “running grass, dope, marijuana [sic] [to] make some good money.” To say that appellant “continuously assured” Hancock that “he would care for” wife and children of Hancock is to strain the meaning of “I can only come across with what I got” and *597similar conditionally couched responses by appellant nearly every time Hancock mentioned his wife and children. As to the “Norm” portion, it was Hancock who interjected that party into the conversation. That appellant had talked with his own attorney about prospective amount of bail for Hancock is, again, consistent with their personal relationship.
In short, the content of their telephone conversation does not demonstrate “circumstances strongly corroborative of both the solicitation itself and the actor’s intent that the other person act on the solicitation,” as required by § 15.03(b).
I respectfully dissent.
TEAGUE and MILLER, JJ., join.. All emphasis is mine throughout unless otherwise indicated.
. In this regard, the opinion of the court of appeals creates an ambiguity in saying "circumstances which strongly corroborate the solicitation itself (as testified to by the accomplice) ...” Richardson, supra, at 686. Inserting thát language parenthetically may cause the clause to mean that such “circumstances” are those “as testified to by the accomplice;” on the other hand, what may be intended is "the solicitation itself as recounted by the accomplice.” Since the legislative intent was to require “more evidence than just the testimony of the person allegedly solicited,” the ambiguity should be reSolved in favor of the latter interpretation, thereby necessitating independent proof of those "circumstances.”
. One ellipsis in its account of their telephone conversation masks a statement by appellant to Hancock revealing a dark side in their relationship, viz:
"I’m supposed to have that stuff this afternoon and your people have already spoken for three quarters, which I will give Bonnie seventy five as soon ás I get something to deliver.”