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Kenneth VODOCHODSKY

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Convicted under the "Law of Parties"
Number of victims: 3
Date of murders: October 12, 1999
Date of arrest: 3 days after
Date of birth: August 16, 1980
Victims profile: Atascosa County sheriff's Deputies Thomas Monse Jr. and Mark Stephenson and Texas State Trooper Terry Miller
Method of murder: Shooting
Location: Atascosa County, Texas, USA
Status: Sentenced to death March 2, 2001. Commuted to life in prison
 
 

 
 
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Name TDCJ Number Date of Birth
Vodochodsky, Kenneth 999377 08/16/1980
Date Received Age (when Received) Education Level
03/02/2001 20 8
Date of Offense Age (at the Offense) County
10/12/1999 19 Karnes (on change of venue from Atascosa County)
Race Gender Hair Color
White Male Black
Height Weight Eye Color
5 ft 7 in 146 Brown
Native County Native State Prior Occupation
Bexar Texas pipe fitter, painter, laborer
Prior Prison Record
None
Summary of incident


Vodochodsky took an active role in helping his co-defendant plan and carry out the murders of 3 peace officers.  Vodochodsky bailed the co-defendant out of jail one day prior to the incident.  The co-defendant had been jailed for Assault-Family Violence.  The co-defendant told Vodochodsky that he was going to retaliate against police officers for his being jailed on the assault charge.  Vodochodsky knowingly withheld information about this pending criminal act.  Vodochodsky and the co-defendant went to a gunshop on the day of the attack and bought $200 worth of ammunition.

The co-defendant was at the home shared by Vodochodsky and the co-defendant on 10/12/1999 and called 911 requesting police assistance.  One Atascosa deputy arrived and was shot and killed as he exited his patrol car.  Another Atascosa deputy arrived and was shot and killed as he exited his patrol car.  A Texas Department of Public Safety Officer was dispatched to check on the two officers, since they had not been heard from.  When he arrived at the scene, he reported an "officer down" situation and requested assistance.  He was shot and killed in his car as he attempted to back away from the scene.  The co-defendant died from a self-inflicted gunshot wound to the head.

While Vodochodsky was not proven to be at the scene when the crime occurred, he was convicted under the "Law of Parties" which holds a person responsible for assisting or encouraging a felon to commit a crime.
 

Co-defendants
Jeremiah Engleton
Race and Gender of Victim
three male peace officers
 
 

 
 
Kenneth (Kenny) Vodochodsky

DoB 08/16/1980

Incarcerated since October 15, 1999
(death row 2001 - 2006)

Deathpenalty-usa.de

CASE SUMMARY

Sometime around the late P.M. hours of 10/11/99 and the early A.M. hours of 10/12/99 a black male in his early twenties, Jeremiah Engleton, was arrested at the home he shared with his wife, Violet Engelton. Also living with the Engletons were Kenneth Vodochodsky and his girlfriend, Sara Lopez. Children also lived in the home. Jeremiah and Kenneth were friends since boyhood. Violet and Sara are sisters. The home where Jeremiah was arrested was a mobile home in rural Atascosa County. Jeremiah Engleton was arrested for hitting Violet, and threatening her life. Violet called the Sheriff, and Deputy Thomas Monse responded to a family violence call at the trailer in the early hours of 10/12/99.

Trial testimony indicated that Deputy Monse allowed Jeremiah to give $ 1,000 to Kenneth for bond. The marriage of Jeremiah and Violet had been strained since Violet admitted to a brief affair with another man a few months before.

Jeremiah was in jail for one day (10/12/99). Meanwhile, Jeremiah’s wife Violet was in the process of filing a restraining order against him, moving from the trailer, and seeking housing for herself and the couple’s daughter. Throughout 10/12/99, Violet shuttled about the local area, visiting her work place, a crises center, an apartment complex with vacancy, and the residence of Annette Vodochodsky (Kenneth’s mother). On 10/12/99, Violet was in the process of distancing her life, daughter, and personal belongings from Jeremiah, who had physically assaulted her just the night before. This was not the first time Jeremiah had assaulted her in recent months.

By the time Jeremiah returned home from jail Violet was gone. Jeremiah spent much of the afternoon at the trailer ranting to himself and Kenneth about growing resentment of Violet, and how he wanted to hurt her. The two also watched a movie called “Saving Private Ryan”, which was one of Jeremiah’s favorites. The two men spent time cleaning outside the trailer, and burned trash. Kenneth also noticed that Jeremiah appeared to be packing as if he was going on a trip. Kenneth thought Jeremiah might be going to his mom’s house for a few days.

At 8:07pm on 10/12/99 Jeremiah placed a 911 call to the Atascosa County Sheriff’s Department from the trailer where he lived. Jeremiah then told Kenneth that he had called 911 and that he should leave if he did not want to be involved. At this point Kenneth believed his friend might be preparing to kill himself, and had called 911so police would discover his body, rather than having a friend or loved one find him. Kenneth was confused, a bit scared, and couldn’t figure out why he would pack as if to travel, if he were going to kill himself. Nonetheless, rather than possibly watch a friend commit suicide, he left. First however, he had to “jump start” his car, since it would not start due to a dead battery. Kenneth jumped his car off Jeremiah’s car around 8:10pm with Jeremiah’s help.

Deputy Monse arrived at the trailer, not long after the 911 call, at approximately 8:28pm according to county records. Upon exiting his patrol car, Jeremiah shot him. Not long afterwards, Jeremiah shot a second Deputy, Mark Stephenson, and then a third arriving officer, Texas DPS Trooper Miller. All three officers died in the ambush.

Later in the night, the body of Jeremiah was found by law enforcement in nearby brush, with an apparent self-inflicted gunshot wound to the head. On Jeremiah’s person was a “Suicide Note” which read: “I have written this for one reason so that all will know why I have done what I’ve done, because of life’s unfairness and uncertainties.”

Later, another suicide note surfaced, which Jeremiah had written to Violet, expressing sorrow over their failed marriage, and asking Violet to tell their daughter the truth of his death.

Jeremiah had made remarks about committing suicide for months. His behavior between learning of his wife’s affair and the triple murder/suicide of 10/12/99 reveal a young man who had stopped caring for his home, his property, stopped paying the bills regularly, spent money in an uncharacteristically reckless manner, craved his own death, and would like to go out the same way the characters did in the movie, “Set It Off”. This film involves a group of women who die in a shootout with police.

Later that evening during the standoff, while Jeremiah was battling with the law enforcement officials that surrounded the trailer, Sara and Kenneth tried to return to the trailer via car, but were turned away by the officer at a road block due to a situation involving a “gunman”. They then drove to Violet’s work and picked her up and returned to Kenneth’s brother’s house (Anthony). Once at Anthony’s they watched TV to see if the news revealed any reports of the situation. At that point Kenneth, Sara, Violet and Anthony learned that Jeremiah had killed himself along with 3 police officers. Jeremiah also wounded three others in the shootout.

During that tragic evening of 10/12/99 three uniformed law enforcement officers were ambushed and killed in the line of duty in rural Atascosa County, in what has become to be known as the “Atascosa Ambush”. Two officers and a passer-by were also wounded in this unfortunate turn of a failed marriage.

The tragic incident received statewide media attention, including intense news coverage by San Antonio television, radio and its newspapers. The shootings occurred not far from San Antonio. Due to the massive media coverage the trial was moved to Karnes County, TX. Kenneth was tried for a crime he was not even present at, had no knowledge of and surely couldn’t have predicted, let alone stopped. The trial took place in rural Karnes County where Kenneth was tried, convicted and sentenced to death.

THE CHARGES AGAINST KENNETH

On 10/15/1999 Kenneth Vodochodsky was arrested on suspicion of participating in the ambush. Kenneth was charged that same day with three counts of Capital Murder and two counts of Attempted Capital Murder. While in custody, he was indicted for Capital Murder of a police officer – Deputy Monse.

The indictment charged that Kenneth “knowingly” caused Monse’s death by shooting him with a firearm. The indictment further charged that “the said Thomas Monse was then and there a peace officer… who was acting in the lawful discharge of an official duty, and (Vodochodsky) knew Thomas Monse was a peace officer.” At trial, the jury was instructed on the “Law of Parties”, and were told to find Kenneth guilty of Capital Murder under the “Law of Parties” if they found that he acted “with intent to promote or assist Jeremiah Engleton to commit the offense of Capital Murder, and did then and there solicit, encourage, direct, aid or attempt to aid Jeremiah Engleton to commit the offense…”

The “Law of Parties”, as applied to Kenneth, states that a person is criminally responsible as a party to a crime if the crime is committed by the conduct of another (Jeremiah Engleton). It further states that a person is criminally responsible for the conduct of another if, acting with intent to promote or assist the commission of the crime he solicits, encourages, directs, aids or attempts to aid the other person to commit the crime.

One of the reasons Kenneth was charged with Capital Murder under the “Law of Parties” is because he did not actually murder anyone! In other words, Kenneth received the maximum sentence – DEATH – for not even murdering anyone! This unique charge is being widely used in the State of Texas to land more innocent people on Death Row.

NEWS

On April 21st 2004, the Texas Court of Criminal Appeals overturned the Conviction and Death Sentence of Kenneth Vodochodsky in a 6-2 opinion.

The opinion of the Texas Court of Criminal Appeals was written by Judge Michael Keasler. The other five justices agreeing with the overturning decision included judge Paul Womack, Judge Tom Price, Judge Cheryl Johnson, Judge Charles Holcomb and Judge Cathy Cochran. Voting to uphold the conviction were Judge Sharon Keller and Judge Lawrence Meyers.

The focus of the opinion was whether or not the evidence presented at trial to the jury was legally and factually sufficient to convict Kenneth. The opinion stated that, under a factual sufficiency review, “…we view all the evidence in an neutral light, both for and against the finding, and set aside the verdict if proof of guilt is so obviously weak as to undermine confidence in the jury’s determination….” It further stated that, “in conducting such a review, we consider all the evidence weighed by the jury…”

The decision of the six justices voting to overturn Kenneth’s Conviction and Death Sentence agreed that the “evidence was factually insufficient to convict.”

They agreed that none of the evidence necessarily suggests that Kenneth acted with intent to promote or assist Jeremiah Engleton in the crime. They also agreed that the weight of the evidence in this case is too weak to support the jury’s conclusion that Kenneth solicited, encouraged, directed, aided or attempted to aid Jeremiah Engleton in committing the crime.

The Justices further agreed that there is no other information in the trial record suggesting that Kenneth was planning the crime with Jeremiah. They even agreed that there was other evidence suggesting that Kenneth was NOT working with Jeremiah in plotting the ambush that left three police officers dead, stating that, “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 Justices concluded that “proof of Vodochodsky’s guilt was so weak as to undermine confidence in the jury’s determination. We reverse Vodochodsky’s conviction and sentence.”

In wake of Kenneth’s conviction and Death Sentence being overturned by the Texas Court of Criminal Appeals on April 21st, 2004, the State of Texas had filed what’s called a “Motion for Rehearing”. This motion was filed to the Texas Court of Criminal Appeals on or about May 6th, 2004.

The basic contents of this Motion for Rehearing was the State of Texas citing different case law on why the Court of Criminal Appeals should not/cannot overturn Kenneth’s Conviction and Death Sentence. Basically, the State was trying to convince the Court of Criminal Appeals to affirm Kenneth’s Conviction and Death Sentence, rather than overturn it.

However, whenever the state files such a motion to the Court of Criminal Appeals, they are almost always unsuccessful. On March 15th, 2005 the Texas Court of Criminal Appeals denied the state’s motion for rehearing! Kenneth’s conviction and death sentence remained overturned!

On April 11th, 2005 the Texas Court of Criminal Appeals decision/opinion that overturned Kenneth’s conviction and death sentence, became final.

And finally, on April 22nd, 2005 Kenneth was transferred to a county jail, where he awaited further disposition by the State.

The following then took place:

In order for the State to retry this case, and reuse all their old “factually insufficient” evidence, they had to produce new/additional evidence, otherwise they would have to release Kenneth. Well, since there was no new/additional evidence to be found, the State decided to "fabricate" some new evidence, just to keep Kenneth behind bars!

This new evidence came in form of 2 new witnesses. For some unexplainable reason, these new witnesses didn’t come forward several years before, when the crime took place.

It’s very interesting that these new witnesses decided to come forward now, at this point in time, after so many years, when the State was so desperate to find new/additional evidence to retry this case.

Even more interesting is that, one of these new witnesses – Pedro Garcia – just happened to be really good friends with one of the lead investigators working for the State against Kenneth.

Pedro Garcia stated that he met Kenneth and Jeremiah at the convenience store only hours before the shooting. He also stated that Jeremiah told him that he was planning to “shoot some pigs…” And so this witness concluded that, after hearing about the shooting on the news, that Jeremiah was talking about shooting police officers, and not “pigs”. He also stated that the reason he never came forward several years before was because he was afraid for his family, and he didn’t think that the police would need his information… But after hearing on the news that Kenneth was no longer on Death Row, and that he could possibly be released due to the State’s lack of evidence, only then did he appear out of nowhere and came forward…

So all of a sudden, Pedro Garcia was no longer afraid for his family, and he now believed his information was important?! Why was that?! It’s because he’s lying! And his good friend, one of the lead investigators for the State, worked with him to “fabricate” his statement, in order to keep Kenneth incarcerated! Pedro Garcia’s entire statement was fabricated to coincide with the factually insufficient evidence the State already had, as to try and strengthen it for use against Kenneth again.

And the other new witness – Shirley Brewster – claimed to have gone to college with Jeremiah, many years ago. She stated that Jeremiah had spoken to her one day about his plans to kill police officers… If that was true, then why didn’t she tell anyone then?! Why wait several years “after” what was supposedly said to her happened?! And judging her statement, it’s clear that the State worked with her as well to fabricate her statement! And she gave no reason as to why she didn’t came forward several years ago.

So now that the State had deceitfully produced these fabricated witnesses as “new/additional evidence”, they could reuse all their old evidence, which was deemed “factually insufficient” by the Texas Court of Criminal Appeals!

Being that Kenneth is innocent, this seemed like a good reason to fight this case. However, since Kenneth can’t afford to hire his own attorney, the State provided him with a “court-appointed” attorney… Unfortunately though, this court appointed attorney was the same one who was appointed to handle Kenneth’s first trial, which ultimately landed Kenneth on Death Row! So it’s pretty obvious that this attorney wasn’t qualified or competent enough to handle such a serious case.

And to prove this, all one had to do is look at what this attorney has accomplished since Kenneth’s transfer back to the county jail … You won’t find anything! Because Kenneth’s court-appointed attorney did absolutely NOTHING to try and obtain Kenneth's freedom. All this attorney did (for nearly one year) was to pressure Kenneth into accepting a plea bargain, instead of going to trial again. This attorney also said that, no matter what, no jury would find Kenneth innocent, just because of the seriousness of the crime, and because it were police officers that were killed. He further said that it didn’t matter how weak and insufficient the evidence was against Kenneth, that it was a no win situation …

So Kenneth asked the judge overseeing the case to have his court-appointed attorney removed, and to be replaced with someone more competent, who will fight for Kenneth’s freedom. But the judge denied the request! He only instructed the attorney to work better with and for Kenneth.

After all that has been said and done, Kenneth had some serious thinking to do… He basically was now left with only two options: Go to trial again with fabricated evidence and an incompetent attorney; or take a plea bargain with a 30-year-prison-term…

Going to trial would result in one of two outcomes: Kenneth would either be found not guilty and possibly go free; or he would be found guilty and receive a Life Sentence (meaning he would have to serve 40 years flat before becoming eligible for parole).

Now, the 30-year plea bargain calls for Kenneth to serve at least 15 years before becoming eligible for parole. But since Kenneth has been incarcerated since 1999, he would see parole in 2014! That’s not very far away.

After taking into consideration the fact that Kenneth’s court-appointed attorney was incompetent, and refused to fight for Kenneth’s freedom; and the fact that the State was producing fabricated evidence, and seemed to stop at nothing to keep Kenneth incarcerated… Kenneth decided that it would be in his best interest to accept the 30-year plea bargain. At least now he has a chance to obtain his freedom in a somewhat reasonable amount of time (compared with a Life Sentence, or even the Death Sentence he had before).

Kenneth is now back in prison, serving his 30-year sentence… But this is not the end! Kenneth can still file an appeal, and even ask for a time reduction. The only negative part about this is, Kenneth would have to either file an appeal himself, or hire his own appeal attorney …

Since Kenneth doesn’t know enough about the law to file an appeal on his own, and he can’t afford to hire his own appeal attorney, Kenneth’s family and friends are accepting donations, and trying to raise money for an appeal attorney, and hopefully a private investigator as well. Anybody interested in helping – in any aspect – should use the contact information below. Many thanks for your time and help!

Kenneth Vodochodsky

Some personal information about Kenneth

Many greetings and best wishes to everyone who is taking the time to read this.

I want to begin this with a small introduction/description of myself…

My full name is Kenneth Conrad Vodochodsky, but all my family and friends call me “Kenny”. I was born on August 16, 1980. So that makes me a Leo! *smile*

I was born and raised in San Antonio, Texas. My nationality is half White, half Hispanic. I am currently single (never been married). I believe in God, but I don’t practice any particular religion. I’m a non-smoker, but I enjoy a casual drink on special occasions. I have a son whom I love and miss more than anything.

Physically I am 5’ 8’’ in height; I weight 160 lbs. I have black hair and brown eyes. Oh, and I have some tattoos! *smile*

I have many interests/hobbies: Reading (all types of books), Writing (letters, poems etc.), Drawing (various types of drawings), Music (all types), Movies (mostly action). My interests include all types of automobiles; flying machines, electronics/technology, outdoor adventures… and some sports… *smile*

If you would like more information about me and/or my case / current situation, please feel free to contact me via snail-mail. I would love to hear from you - be it good or bad. *smile*

Sincerely yours,

Kenny

Kenneth Vodochodsky
# 1362329
Pack I Unit
2400 Wallace Pack Rd.
Navasota, TX 77868
USA


Former death row inmate agrees to deal in officer shooting - worst massacres of TX law officers

Associated Press

March 29, 2006

SAN ANTONIO - An Atascosa County man said he'll plead guilty to murder for his role in an ambush that killed three law officers and wounded two.

Kenneth Vodochodsky, 25, was set for a May trial on charges that he was an accomplice in the October 1999 slaying - known as one of the worst massacres of law officers in Texas history.

The Texas Court of Criminal Appeals in 2004 overturned an earlier murder conviction and death sentence for Vodochodsky. But prosecutors were preparing to bring him to trial again when the deal was reached this week. This time they weren't seeking the death penalty.

"I sure don't want to spend the rest of my life in prison," the defendant told the San Antonio Express-News in a jail interview. "At least this way, I wouldn't."

The plea agreement, which still requires the court's approval, calls for a 30-year sentence and includes an option for parole after 15 years. With credit for time served, Vodochodsky could be halfway to parole eligibility.

Texas' highest criminal appeals court overturned Vodochodsky's earlier conviction because it found weak evidence to support the jury's findings that he helped roommate Jeremiah Engleton, the triggerman in the murderous spree.

Engleton made a bogus 911 call and then opened fire on officers responding to his mobile home before turning the gun on himself. Killed were Atascosa County sheriff's Deputies Thomas Monse Jr. and Mark Stephenson and Texas State Trooper Terry Miller.

Engleton had been arrested the previous day for attacking his wife. Vodochodsky bailed him out, and the two men visited a gun store together as Engleton stocked up on ammunition. Vodochodsky left their mobile home only after Engleton placed the 911 call.

After his conviction was overturned, prosecutors continued to collect circumstantial evidence tying Vodochodsky to the crime. A former classmate of Engleton's told investigators that Engleton said he was planning to target some law officers with his best friend.

Vodochodsky said such stories are untrue, but that they showed the prosecutors' determination to keep him locked up.

The prosecutor in the case did not return phone calls.

Alan Futrell, Vodochodsky's lawyer, said the agreement is the best possible outcome.

"It's a good agreement because neither side is happy," he said. "Neither side can say, 'We won.'."


IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. 74,129

KENNETH VODOCHODSKY, Appellant
v.
THE STATE OF TEXAS

ON DIRECT APPEAL FROM KARNES COUNTY

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.

O P I N I O N

In February 2001, a jury convicted Kenneth Vodochodsky of killing a peace officer who was acting in the lawful discharge of an official duty. (1) 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. (2) Direct appeal to this Court is automatic. (3) Vodochodsky raises four points of error. We sustain his second point of error, which alleges that the evidence is factually insufficient. We reverse his conviction and sentence.

A. The Victims

In the early evening hours of October 12, 1999, Atascosa County Sheriff's Deputies Thomas Monse and Mark Stephenson and Texas Department of Public Safety Trooper Terry Miller were ambushed and killed by multiple gunshots. Monse died from eighteen gunshot wounds caused by rifle, shotgun, and handgun fire. Two of his wounds were caused by close range handgun fire to his face. Stephenson died from eleven gunshot wounds caused by rifle and handgun fire. Stephenson also had wounds which were caused by close-range handgun fire to his face. Miller received two wounds from rifle fire. The shot through his head killed him. Several other officers involved in the conflict were also injured.

At the end of the incident, the shooter, Jeremiah Engleton, killed himself with a gunshot wound to his head. Near his body lay an SKS Norenco 7.62 x 39mm semiautomatic rifle, a Mossberg 12-gauge pump-action shotgun, a Ruger 9mm semiautomatic handgun, and a Glock .40-caliber semiautomatic handgun. The police also found a Lorcin .380-caliber semiautomatic handgun in Engleton's pants' pocket and a suicide note in his right shoe.

Vodochodsky was subsequently indicted for intentionally or knowingly causing Monse's death by shooting him with a firearm. The indictment further charged that "the said Thomas Monse was then and there a peace officer . . . who was acting in the lawful discharge of an official duty, and [Vodochodsky] knew Thomas Monse was a peace officer." At trial, the jury was instructed on the law of parties and authorized to find Vodochodsky guilty if they found that he acted "with intent to promote or assist Jeremiah Engleton to commit the offense of capital murder, and did then and there solicit, encourage, direct, aid or attempt to aid Jeremiah Engleton to commit the offense . . . ."

B. The Crime Scene

Jeremiah Engleton, his wife Violet, their infant daughter, Violet's sister Sara Lopez, her two children, and her boyfriend Kenneth Vodochodsky (who had been Engleton's friend since they were small boys) lived in a three-bedroom home in rural Atascosa County just east of Pleasanton. A thickly overgrown field surrounded by a barbed-wire fence sits to the north of the residence. Two driveways enter the property. Directly across from one entrance to the residence, the barbed wire fence had been cut, apparently to facilitate the shooter's movement between the field and the residence. The field was littered with over a hundred spent rifle and shotgun casings, and the police found several locations in the field that appeared to be shooting positions.

Monse and Stephenson were gunned down near their vehicles at the north end of the residence. Miller was shot as he backed his vehicle away from the residence. Others were wounded as they stood behind Miller's vehicle trying to assess the situation.

C. The Sequence of Events

On October 11, 1999, Engleton came home late in the evening and immediately got into an argument with Violet. He struck her and pointed a gun at her head. Around midnight, in response to Engleton's violent behavior, Violet called the Atascosa Sheriff's Office, and Deputy Monse was dispatched to their residence. About the time Monse was exiting his vehicle, Engleton asked Vodochodsky, "Do you remember what we've been talking about? I'm going to do it right now." According to Sara, Vodochodsky replied, "No, it's not worth it." Monse then arrested Engleton but allowed him to leave Vodochodsky his wallet and $1,000.00 to bail him out the next day. Engleton was booked into jail at 1:10 a.m. on October 12, 1999.

Later that morning, Engleton commented to his cellmate, Orlando Garcia, that "[t]hese motherfuckers don't know what they got coming," and that it was going to make the front page. Garcia also overheard a telephone call Engleton placed to Vodochodsky, during which Engleton told Vodochodsky to make sure that Violet did not take his "SK" (an SKS Chinese- or Russian-made semi-automatic assault rifle) or his "nine" (a 9 millimeter semiautomatic pistol). Engleton also told cellmate Phillip Darrah that he had been arrested for domestic violence and that when he got out he "had plans and planned to make some headlines." Darrah also overheard a telephone conversation between Engleton and Vodochodsky during which Engleton asked Vodochodsky to take care of his belongings and specifically mentioned the "SK." Engleton also told Vodochodsky to bring the $1,000.00 he left him to make his bail.

While Engleton sat in jail, Sara and Violet moved some of Violet's property into a storage facility and obtained a restraining order requiring Engleton to vacate the residence by 5:00 p.m. that evening. Shortly after noon, they packed up more of Violet's property and left for Vodochodsky's parents' house in nearby Floresville.

At 2:12 p.m., Vodochodsky posted Engleton's bail. Between 3:30 and 4:30 p.m., the two men went to a Pleasanton gun shop where Engleton purchased several boxes of ammunition. After that, they returned to their residence. Around 5:30 p.m., Sara called the house and Vodochodsky told her that Engleton had left. Sara, Violet, and Vodochodsky's brother Anthony then left Floresville and drove toward the residence. When they arrived, they saw Engleton's vehicle and continued on to a grocery store in Pleasanton. Sara then called Vodochodsky again. At first Vodochodsky acted like he was angry because they had not shown up, but then he dropped his voice to a whisper and told Sara not to come home. Instead, he told Sara that he would meet her at Anthony's house later. Sara and Anthony left Violet with a friend and went to Anthony's house. After that, the events occurred in the following order:

7:45 p.m. A neighbor, Edward Essary, drove past Vodochodsky's residence on his way to Wal-Mart. As he passed the residence, he saw Vodochodsky loading "stuff" into his vehicle.

8:07 Police received a "911" call to the Atascosa County Sheriff's Office from Engleton's home. Vodochodsky was still at the residence.

8:13 Monse and Stephenson were dispatched to the residence.

8:28 Monse arrived at the residence and apparently was immediately shot and killed.

8:30 Stephenson arrived.

8:31 Stephenson very faintly radioed in that he had been hit. At approximately this same time, Vodochodsky's neighbor, Robert Hutton, heard several gunshots. As he sat in his car at the adjacent intersection, Hutton saw two patrol cars on Vodochodsky's property with their headlights on. He also noticed that the security light in the back of the residence was off. Further, Hutton noticed a flashlight moving on top of Vodochodsky's residence and concluded that a person was walking around on the roof. He noted that the individual was on the backside of the pitched roof near the north end of the residence overlooking the deputies' vehicles. After 45 seconds to a minute, Hutton drove away.

8:37 Miller was dispatched to the residence to check on Monse and Stephenson because they could not be reached by radio. Also around this time period, but before Miller arrived at the residence, Essary returned from Wal-Mart. As he passed Vodochodsky's home, he noticed the two deputies' vehicles in Vodochodsky's north driveway. After arriving home and putting away his purchases, Essary became concerned about the events at Vodochodsky's house. He then got back in his car and drove toward the house.

8:51 Miller arrived at the residence.

8:52 Miller radioed in "officer down" and requested assistance. As Miller was backing away from the residence in his vehicle, he was shot and killed while still in his vehicle. As Essary approached Vodochodsky's house, he saw a highway patrol vehicle backing away from the residence and heard gunfire. As Essary passed the residence, he saw a flashlight on the ground at the north end of the residence. Essary turned the corner and made his way to another neighbor's house.

8:56 Pleasanton Police Department Officer Louis Tudyk arrived at the intersection adjacent to the house. He parked his vehicle behind Miller's vehicle.

8:57 Retired United States Border Patrol Special Agent Carl Fisher pulled his truck up alongside Tudyk's vehicle.

8:58 Tudyk and Fisher were shot and wounded.

9:00 Vodochodsky arrived at Anthony's house, which is located 21.7 miles from his own. He told Anthony that he drove straight there from his house, a trip which should take 21 to 23 minutes depending upon speed and traffic. Vodochodsky told Sara that Engleton was going to kill himself, and that he wanted to watch the news. Sara told Vodochodsky that Engleton's suicide would not be on television. Sara wanted to go to the residence to help Engleton, but Vodochodsky did not want to go. Over Vodochodsky's objection, Sara called Violet to tell her that Engleton planned to kill himself. Vodochodsky eventually agreed to go to the residence.

10:47 Vodochodsky and Sara arrived at one of the roadblocks attempting to get to the residence, but they were not allowed through. They then went to pick up Violet and returned to Anthony's house. After arriving at Anthony's house, Vodochodsky gave Violet a farewell letter from Engleton. Throughout this time period, many other officers arrived at the residence and took part in the standoff. Finally, with the help of officers in a San Antonio Police Department helicopter, ground officers pursued Engleton. Before they reached him, Engleton shot himself in the head and died.

Either the night of the killings or the next day, October 13, Vodochodsky admitted to Sara that he was at the residence when the bogus 911 call was made, but he denied making it himself. Around 2:00 p.m. on October 13, Vodochodsky spoke with Texas Ranger Tony Leal about the events of the previous day. Vodochodsky told Leal that he left his house at 8:00 p.m. the previous evening and drove directly to his brother's house in Poteet. Vodochodsky later told a reporter that he left the house at 7:45 p.m. Vodochodsky also indicated to Leal that he did not know about Engleton's plans regarding the night of the murders.

Around 1:00 p.m. on October 14, Vodochodsky talked to Essary about the killings. During this conversation, Essary showed Vodochodsky where he had seen the flashlight the night of the killings. In response, Vodochodsky stated, "Yeah, that's where one of the pigs - that's probably where one of the pigs got shot at." Vodochodsky also told Essary that he bailed Engleton out of jail "[t]o do this." Essary unequivocally told the jury that Vodochodsky made the statement in a tone that indicated that he was proud of his actions.

Vodochodsky also told Essary that Engleton wanted to kill the officer that came to arrest him for assaulting Violet, but Vodochodsky told Engleton, "No, . . . we ain't got nothing planned yet." Vodochodsky told Essary that Engleton was going to kill himself and "take some pigs with him." Vodochodsky then stated that "that would be less pigs in the world." Vodochodsky told Essary that, after they returned home, Engleton kept four guns and Vodochodsky loaded the rest in his car as well as some other items "because the police were coming and he took the stuff that they would confiscate." Along with other weapons, Vodochodsky also took some tools, the "papers" to the house, and the "papers" to Engleton's boat. When Essary commented about how the police cut up the fence across the street, Vodochodsky responded, "No, that's where [Engleton] cut it up" and "that's where he was shooting at." Vodochodsky further commented to Essary that he knew that Engleton had gone "over the edge" when he took the deputy's gun.

Some time after Vodochodsky was incarcerated, jail personnel found in his possession a note containing numbers and simple mathematical calculations. Beside one number was the word "bond" and beside another number was the word "bullets."

D. Analysis

In his first point of error, Vodochodsky asserts that the evidence is legally insufficient to support the jury's verdict of guilty of capital murder. In his second point, he asserts that the evidence is factually insufficient. As previously noted, Vodochodsky was indicted for intentionally or knowingly causing the death of Thomas Monse, a person he knew to be a peace officer acting in the lawful discharge of his duty, by shooting him with a firearm. After the presentation of evidence, the court charged the jury that it could find Vodochodsky guilty if it found that he acted with the intent to promote or assist Engleton in committing the offense of capital murder, and Vodochodsky did then and there solicit, encourage, direct, aid or attempt to aid Engleton in committing the offense. It is well-settled, and Vodochodsky does not contest the rule, that the law of parties need not be pled in the indictment. (4) Further, Vodochodsky does not challenge the fact that Engleton intended to kill a peace officer who was acting in the lawful discharge of his duties. Instead, Vodochodsky contends that he was merely present at the scene and, therefore, cannot be held responsible for Engleton's acts.

In reviewing the legal sufficiency of the evidence, this Court looks at all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. (5) In determining whether evidence is sufficient to convict, we must examine the totality of the circumstances. (6) Texas Penal Code � 7.01(a) states that "[a] person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both." A person is criminally responsible for 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[.]" (7)

The night before the offense, Engleton expressed a desire to "do it right now" and Vodochodsky told him they did not yet have a plan. A rational jury could conclude from this evidence that Engleton had a plan to kill a peace officer, that Vodochodsky was aware of Engleton's plan, and that Vodochodsky wanted to wait until the plan was foolproof. On the day of the crime, Vodochodsky bailed Engleton out of jail, later telling Essary that he bailed him out "to do this." A rational jury could conclude from this evidence that Vodochodsky bailed Engleton out of jail specifically to carry out the plan to kill peace officers. Knowing that the police were coming and knowing that Engleton intended to commit suicide after his killing spree, Vodochodsky took many items from the house. A rational jury could conclude from this evidence that Vodochodsky sought to help Engleton wrap up his affairs as part of his participation in the plan. Finally, Vodochodsky commented to Essary after the crime that he knew that Engleton had "gone over the edge" when he took the deputy's gun. A rational jury could conclude from this evidence that Vodochodsky was still at the residence and witnessed at least Monse's murder, despite any claims to the contrary.

In light of this evidence, we hold that a rational jury could have found beyond a reasonable doubt that Vodochodsky acted with an intent to promote or assist Engleton in committing this offense. Point of error one is overruled.

In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if "proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." (8) In conducting such a review, we consider all of the evidence weighed by the jury, comparing the evidence which tends to prove the existence of the elemental fact in dispute to the evidence which tends to disprove it. (9) We are authorized to disagree with the jury's determination even if probative evidence exists which supports the verdict, but we must avoid substituting our judgment for that of the fact-finder. (10)

In this case, the overwhelming weight of the evidence mitigates against the conclusion that Vodochodsky solicited, encouraged, directed, aided or attempted to aid Engleton in committing the offense. All of the evidence that could legally support a rational jury's conclusion is nevertheless so weak that our 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 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 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 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.

We conclude 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. Point of error two is sustained.

We reverse the judgment of the trial court and remand this case for Vodochodsky to answer the charges in the indictment.

DATE DELIVERED: April 21, 2004

PUBLISH

1. Tex. Penal Code Ann. � 19.03(a)(1).

2. Art. 37.071, � 2(g). Unless otherwise indicated this and all future references to Articles refer to the Code of Criminal Procedure.

3. Art. 37.071, � 2(h).

4. Marable v. State, 85 S.W.3d 287 (Tex. Crim. App. 2002)(and cases cited therein).

5. Jackson v. Virginia, 443 U.S. 307 (1979); Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. 1981).

6. See Denton v. State, 911 S.W.2d 388, 389-90 (Tex. Crim. App. 1995); Miller v. State, 667 S.W.2d 773, 776 (Tex. Crim. App. 1984); Rucker v. State, 599 S.W.2d 581, 591 (Tex. Crim. App. 1979); Reynolds v. State, 506 S.W.2d 864, 867 (Tex. Crim. App. 1974). See also Garcia v. State, 887 S.W.2d 862, 870 (Tex. Crim. App. 1994).

7. Tex. Penal Code � 7.02(a)(2).

8. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Goodman v. State, 66 S.W.3d 283, 285-86 (Tex. Crim. App. 2001).

9. Johnson, 23 S.W.3d at 7.

10. Id.; Santellan, 939 S.W.2d at 164.

 

 

 
 
 
 
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