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Click here for the full text of this decision FACTS:In February 2001, a jury convicted Kenneth Vodochodsky of killing a peace officer who was acting in the lawful discharge of an official duty. Pursuant to the jury’s answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, �� 2(b) and 2(e), the trial judge sentenced Vodochodsky to death. HOLDING:Reversed and remanded. The overwhelming weight of the evidence mitigates against the conclusion that Vodochodsky solicited, encouraged, directed, aided or attempted to aid Jeremiah Engleton in committing the offense. All of the evidence that could legally support a rational jury’s conclusion is nevertheless so weak that the court’s confidence in the jury’s verdict is undermined. When Engleton expressed a desire to “do it right now” and Vodochodsky told him they did not yet have a plan, neither man specifically mentioned killing a peace officer. When Vodochodsky told a neighbor, Edward Essary, that he bailed Engleton out of jail “to do this,” he did not specifically state that he bailed him out as part of a plan to kill police officers. Vodochodsky removed belongings from the house, but there is no proof that he did so as part of a murderous plot. And Vodochodsky’s comment to Essary that Engleton had “gone over the edge” when he took the deputy’s gun could just as reasonably have been a speculative comment, not one indicating that Vodochodsky had witnessed Thomas Monse’s murder. Indeed, none of that evidence necessarily suggests that Vodochodsky acted with intent to promote or assist Engleton. None of his statements directly refer to killing police officers. His statements are devoid of information on the details of the alleged murder plot, and there is no other information in the record suggesting that Vodochodsky was planning the event with Engleton. Furthermore, other evidence suggests that Vodochodsky was not working with Engleton. His whispered warning to Sara Lopez could indicate that while he may have known of Engleton’s plan, he was not a party to it. He did not participate in the purchase of ammunition. There is no evidence that Vodochodsky actually did any affirmative act to assist Engleton with the plan. Instead, Vodochodsky had the bad luck of being the friend and roommate of a man determined to kill police officers and himself. The court concludes that proof of Vodochodsky’s guilt was so weak as to undermine confidence in the jury’s determination. This evidence was factually insufficient to convict. OPINION:Keasler, J., delivered the opinion of the Court in which Price, Womack, Johnson, Holcomb, and Cochran, JJ., joined. Keller, P.J., filed a dissenting opinion. Meyers, J., dissented. Hervey, J., did not participate. DISSENT:Keller, P.J. �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. 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 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.”

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