Schwenk v. State

*143OPINION

CLINTON, Judge.

This is an appeal from a conviction for the offense of criminal solicitation1 in which the jury assessed punishment is seven years confinement.

The sufficiency of the evidence is challenged.

Viewed in a light most favorable to the jury’s verdict of guilt, the evidence reflected that undercover police officers David Galindo and David Sheetz received information on or about July 5, 1976 from an unidentified informant which resulted in Galindo’s receipt of a telephone call from appellant on or about July 12,1976. In this conversation, appellant advised Galindo he “wanted somebody to disappear.” In a second conversation appellant indicated the intended victim was his wife and informed Galindo of her work and home addresses. A contract price of $8,000 was discussed. In a third conversation, appellant advised Galindo he would only pay $2,000. Galindo suggested that they meet and discuss the matter face to face.2 Appellant agreed to bring $1,500 to the meeting so Galindo could count it. On July 26, 1976, appellant and Galindo met behind a lounge.3 According to Galindo’s testimony:

“I told [appellant] that I had a cousin that was going to help me on this thing.
* * * * * *
Q: What did you tell the Defendant, Gary Schwenk, that your cousin was to do in regards to doing away with his wife?
******
A: I told him that I was going to need some help and my cousin would have to help me from San Antonio.
* * * * * *
Q: And did you tell him how your cousin was to help you?
A: No. 1, to be sure that the money was covered. That was his job, to be sure the money was there.
Q: Was your cousin, as you stated to Gary Schwenk, also to help with the killing of his wife?
* * * # # *
A: Yes sir. * * * He was to help kill his wife.
Q: Now, I believe I heard on the tape, but let me ask you, please sir, did you tell the Defendant how you were going to do away with his wife?
A: Yes, sir. * * * Overdose. O.D.”4

Galindo testified that his “cousin” was in fact his partner in this undercover operation, Officer David Sheetz.

The record does not reveal how appellant's presence was obtained, but on July 28, 1976, he met David Sheetz for the first time in the parking lot of Northline Bank. According to Sheetz, the purpose of the meeting was as follows: “Mr. Schwenk had two thousand dollars that he was going to pay me — excuse me, put in a safety deposit box for killing his wife.” At the parking lot, according to Sheetz,

“I approached [appellant]. * * * I started off, walked up to the pickup and asked him, I said, ‘Are you Gary,’ at which time he replied, ‘Yes, I am.’ He asked if I was Darrell— * * * and I stated I was.”

*144Sheetz testified that he and appellant discussed how the latter was to be contacted after “we had killed his wife” and the two then entered the bank in order to rent a safety deposit box. Inside the bank, Sheetz paid the $5.00 rental fee and a deposit box was taken out in both appellant’s name and Sheetz’s alias, “Darrell Scott;” only “Darrell Scott,” however, signed the paper work. The two were then taken to their safety deposit box and shown how to open it. According to Sheetz,

“[Appellant] removed it from his pocket, counted out the two thousand dollars, placed it in the safety deposit box, locked the box. And [the bank employee] gave Mr. Schwenk both keys and we left the bank.”

Upon leaving the bank, appellant was arrested.

On cross examination Sheetz testified that a recording made of his meeting with appellant “didn’t come out very clear” and conceded there was nothing in his police report to indicate appellant had hired him, Sheetz, to kill his wife. So, on redirect examination, the prosecutor began,

“Q: When you first did see the Defendant ..., to go over this one more time, so that I am sure, did you have a conversation as to your participation in the actual murder of his wife?
A: Yes, sir, I did.
Q: And what did you tell him that you were going to do?
A: We told Mr. Schwenk that she would be killed by an overdose. I had the reputation of being a dope dealer and a killer out of San Antonio. And, to make it look as if it was accidental, we would fix her with an overdose.”

In the trial court’s instructions to the jury, appellant's conviction was authorized as follows in salient part:

“Now, if you should find... beyond a reasonable doubt that on or about the 28th of July, 1976, ... the defendant, Gary Lee Schwenk, did intentionally or knowingly, with intent that capital murder be committed, request, command and attempt to induce D. B. Sheets [sic] to kill Carol Schwenk for remuneration and promise of remuneration, then you will find him guilty of criminal solicitation to commit capital murder as charged in the indictment.”5

On appeal, appellant contends that at best, the evidence demonstrates his awareness of Galindo’s engaging Sheetz to participate in the scheme to kill Carol Schwenk, but that nowhere in the record is there any evidence that he, appellant, actively solicited Sheetz’s involvement as is alleged in the indictment; “mere acquiescence,” appellant argues, is not the same as “commanding, requesting and attempting to induce” which was the conduct required under the charge of the court to justify his conviction.

The State’s response is to recount the evidence as we have done ante, then conclude: “There is nothing in the record to suggest anything but that [appellant] believed Sheetz to be the ‘doper’ who he had requested and induced to kill his wife for $2,000.00.” But this is not responsive to appellant’s contention that the proscription against “criminal solicitation” contemplates active, initiative conduct on the part of one who is to be held criminally culpable thereunder.

The Practice Commentary to V.T.C.A. Penal Code, § 15.03, observes that § 15.03, supra, introduces a new offense to Texas law which “applies to a narrow area of conduct very close to the beginning of a criminal enterprise and may be thought of as an ‘attempted’ conspiracy.” Indeed, it is because criminal solicitation “reaches so far back into preparatory conduct, ” that it applies only to the most serious offenses, viz: capital and first degree felonies. The Practice Commentary sets out an instructive example, juxtaposing criminal solicitation with the other preparatory offenses denounced by Texas law:

“The nature and scope of Section 15.03 may be illustrated by a case in which A solicits B to kill C. If B agrees to do so, and either A or B acts in furtherance of the agreement, both A and B are guilty *145of conspiracy. If B shoots at C but misses, both A and B are guilty of attempted murder. If, however, B refuses to undertake the homicidal project, the conduct of A [in soliciting B] was not criminal under prior law, but A is [now] guilty of criminal solicitation under Section 15.03.”

See also Doty v. State, 585 S.W.2d 726 (Tex.Cr.App.1979) (Opinions Concurring and Dissenting).

The Commentary further asserts that “[t]he acts prohibited by subsection (a) [of § 15.03, supra] are of an active, positive nature, and the culpable mental state required is specific intent. Moreover, the solicitation must be of specific conduct thus excluding, for example, a political speech, however inflammatory.”

While we intend no implication that the Practice Commentary constitutes legal authority by which this Court is bound, we review it here for whatever assistance it may offer relative to principles of statutory construction applicable to our penal code. See V.T.C.A. Penal Code, § 1.05(b); and Article 5429b-2, § 3.03(l)-(4), V.A.C.S.6 Another resource in our quest for construction is a standard dictionary, from which we may glean “the rules of grammar and common usage” applicable to words or phrases which are in issue. See V.T.C.A. Penal Code, § 1.05(a) and (b); and Article 5429b-2, § 2.01, V.A.C.S.

“Request” is defined as “the act or an instance of asking7 for something; to make a request to or of.” Webster’s New Collegiate Dictionary (1977); Webster’s Seventh New Collegiate Dictionary (1969). “Command” means “to direct authoritatively; order; to exercise a dominating influence over.” Id. And “induce” means “to lead on; move by persuasion or influence; to call forth or bring about by influence or stimulation; effect, cause; ... to arouse by indirect stimulation.”

We believe “the fair import of [the] terms”8 which constitute the gravaman of the offense of criminal solicitation as proscribed by § 15.03(a), supra, compels the conclusion that the conduct denounced is indeed of an initiative “active, positive nature,” and we so hold.9 Having construed the statute, we turn now to measure the evidence adduced in this case against that statutory criterion.

We first observe that the evidence amply establishes appellant’s criminal solicitation of Officer Galindo to commit capital murder. But for reasons known only to the State, such was not the allegation upon which appellant was tried and, thus, is not the issue before this Court. Neither was appellant tried for merely “attempting to induce” Officer Sheetz to commit capital murder.

We therefore likewise pretermit inquiry into the evidentiary sufficiency to establish that constituent of the State’s burden of proof.

For it is clear that the conduct alleged and required to be found by the jury — that appellant requested, commanded and attempted to induce David Sheetz to kill Carol Schwenk for remuneration — was simply not established by the evidence adduced *146at trial. While the evidence appears to be sufficient to prove appellant passively agreed to the participation of and, thus, criminally conspired with Officer Sheetz,10 under the facts shown here that was well after Sheetz’s involvement had been “solicited” by Galindo, both in fact and in the mind of appellant. Accordingly, the evidence is insufficient to support the jury’s verdict.

The judgment of conviction is reversed and reformed to show an acquittal.

TEAGUE, J., not participating.

Before the court en banc.

. V.T.C.A. Penal Code, § 15.03(a) denounces the offense of criminal solicitation as follows:

“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."

. Another purpose of the meeting was to give Galindo an opportunity to show appellant photographs the former had taken of appellant's wife as she ostensibly went about her daily routine. These photographs were introduced into evidence as State’s Exhibits numbered 1 through 6.

. This meeting was tape recorded. Though this tape was played for the jury and admitted into evidence, it is not included in the record for this Court's consideration.

. All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.

. The indictment filed against appellant alleged the offense in identical language.

. The portions of the Practice Commentary selected and discussed ante, seem particularly appropriate to the following:

"Sec. 3.03. In construing a statute, whether or not the statute is ambiguous on its face, a court may consider among other matters the
(1) object sought to be attained;
(2) circumstances under which the statute was enacted;
(3) legislative history;
(4) common law or former statutory provisions, including laws upon the same or similar subjects; * * *"

Article 5429b-2, supra.

. "Ask" is defined as "[the act of calling] on for an answer; to put a question about; speak, utter [a question].” Synonyms listed for the applicable connotation are "ask;" "request;” "solicit;” the "shared meaning element” of these synonyms is "to seek to obtain by making one’s wants known."

. See § 1.05(a), supra.

. As we have seen, conduct which is farther down the line of preparatory acts, is criminalized by V.T.C.A. Penal Code, §§ 15.02 (criminal conspiracy) and 15.01 (criminal attempt). As such this holding also best serves "to promote justice and effect the objectives of the code." Section 1.05(a), supra.

. Section 15.02, supra, provides in relevant part:

"(a) A person commits criminal conspiracy if, with intent that a felony be committed:
(1) he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and
(2) he or one or more of them performs an overt act in pursuance of the agreement.
(b) An agreement constituting a conspiracy may be inferred from the acts of the parties.”