

 







IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. AP-74,129


KENNETH VODOCHODSKY, Appellant

v.


THE STATE OF TEXAS

 


ON DIRECT APPEAL
FROM KARNES COUNTY



		Cochran, J., filed a concurring opinion.

	I join all of the Court's opinion except the paragraph on page 12 beginning with the
sentence, "A rational jury could conclude from this evidence that Vodochodsky was present
during the shoot-out and that he participated in part of it."  I do not believe that a rational jury
could conclude that appellant, Kenneth Vodochodsky, was present during any part of the
shoot-out.  Here is why.
	It is undisputed that appellant was present at the time the bogus 911 call was made,
but I believe that the record is clear that appellant was not present at the time of any of the
killings.  No witness and no physical evidence places appellant at Engleton's residence at the
time Deputy Monse was killed.  And the evidence shows that it was nearly impossible for
him to have been present.
	George Gorman, Jr., one of Engleton's neighbors, returned home after visiting with
a neighbor sometime between 8:15 and 8:28 p.m.  Gorman saw Deputy Monse turn onto
Engleton's property.  Minutes later, he saw Deputy Stephenson turn onto the property. 
Gorman did not see appellant's car.  Judging from the State's numerous diagrams and
photographic exhibits showing the intersection, the corner property, the position of the trailer,
and the lack of trees or other foliage on the property, if appellant's car were still at the trailer,
Mr. Gorman would have seen it in the headlights of both of the patrol cars. 
	Similarly, Robert Hutton was unable to place appellant at Engleton's residence at the
time Deputy Monse was killed.  Hutton testified that he went outside to play with his dogs
for a couple of minutes - "a little bit after 8:00 p.m."  According to Hutton's testimony, he
heard gunfire "[r]ight after [he] got outside." (1)  Hutton said that when he drove past
Engleton's trailer shortly after Deputy Stephenson had arrived (only two minutes after
Deputy Monse had arrived), he looked at the trailer for approximately 45 seconds to one
minute and saw that the headlights of both patrol cars had lit up the front of the house.  
	Mr. Hutton testified that, although he saw only the two patrol cars in the front yard, 
he had seen a flashlight moving around on the back of the trailer roof between 8:30 and 8:33
p.m. (2)  Perhaps he did, but there is no evidence that this person could have been appellant
rather than Engleton.  Spent casings were found on the ground near the trailer that might
have been consistent with a shooter on the roof.  Those casings were .9 mm and .380
casings. (3)  Nine millimeter and .380 handguns were found next to Engleton's body when he
later killed himself in the open field across the road.  
	Jesus Garza, another neighbor of Engleton's, could not place appellant's car at the
trailer at the time Deputy Monse was killed.  Mr. Garza testified that he saw appellant pull
Engleton's blue Monte Carlo up to the front of the trailer, where appellant's car was parked,
sometime between 8:00 p.m. and 8:15--right before Mr. Garza went inside to take a shower. 
When he finished his shower, Mr. Garza heard noises outside and saw the deputies' cars over
near the trailer.  He did not see the blue Monte Carlo or any other car except those of the
deputies.  Not hearing anything more, he went back inside, but came out again when he heard
the highway patrol car coming up Corgey Road. 
	Alex Sanchez, another neighbor, testified that he could see the front of Engleton's
trailer and saw only the two patrol cars.  
	Like George Gorman, Robert Hutton, Jesus Garza, and Alex Sanchez, Edward Essary
saw many of the events before, during, and after the murders.  Mr. Essary, a tank commander
in Saudi Arabia during Desert Storm, used his binoculars to look straight across his property
to watch the fire fight, but he could not see the shooter.  He, too, thought appellant was not
present during the shoot-out.  During cross-examination he testified:
Q:	How do you suppose Kenny knew about the officers on the 14th - that he knew the
officers' guns had been used on them if he wasn't even there? 
A: 	That's your guess is as good as mine. 
Q: 	I mean, because you've said he's gone - 
A:	He said it. 
Q.	He's gone, right? 
A. 	Yeah.  When I got past the deputy's car he was not there. 
Q. 	He was gone.  I mean, his car was gone? 
A.	Was gone. 
Q. 	And if people said he was in Poteet 35 or 40 minutes later you wouldn't have any
reason to doubt that, would you?  You can get to Poteet from here in 35 or 40
minutes, right? 
A. 	Yeah.  
...
Q. 	So he was gone when all the shooting happened as far as you know? 
A.	As far as I know. (4) 

	Mr. Essary's testimony explicitly placed appellant's car right in front of the trailer
when Essary passed by at 7:45 p.m.  Except for two mounds of dirt, the area around the
trailer is barren and treeless; there is no place where appellant's Hyundai could be parked and
not be visible from either of the two intersecting roads.  Several witnesses saw the first two
police cars turn into the trailer area or saw them as soon as they had stopped.  No one saw
appellant's car reflected in the headlights.  No one saw appellant's car, which had been
parked immediately in front of where the two patrol cars pulled in.  No one saw appellant or
any indication that appellant was present.  No witness at trial stated or suggested that
appellant was there. 
	Indeed, the State's expert crime-scene investigator, John Martin, meticulously walked
the jury through his recreation of the shooting-a version in which Engleton was the sole
shooter and only perpetrator present at the scene.  Officer Martin checked the roof of the
trailer that night because someone had said that "maybe" someone had been on the roof.  He
found no evidence that anyone had been on the roof that night.  He testified that he found no
crime-scene evidence that led him to think that appellant was involved in the shoot-out.
	Furthermore, it is undisputed that appellant arrived in Poteet by 9:00 p.m.  The drive
is 21.7 miles from the trailer.  Deputy Monse was killed at 8:28 p.m.  Any theory that
supposes appellant was present on the trailer roof shooting at something or someone between
8:30 and 8:33 when Mr. Hutton saw what he thought was a flashlight on the roof must also
account for the fact that appellant's car, which had needed a jump start shortly after 8:00
p.m., (5) was invisible to several passersby at or immediately before and after that time, and that
appellant had to have scrambled down from the roof after shooting, found Engleton, wiped
any fingerprints from the guns, given Engleton those guns which were later found next to
Engleton's body, found his hidden car, gotten into it, started it up, passed by five watching
neighbors without being seen by any of them, (6) and driven to Anthony's house in Poteet, all
in less than thirty minutes.  This is an extraordinary feat in itself.  Moreover, there is no
evidence to support its occurrence. 
Cochran, J. 
Filed: March 16, 2005.
Publish
 




1.  Mr. Hutton may have been a little confused about the timing because Deputy Monse
was not killed until 8:28 p.m. and Deputy Stephenson was not shot until 8:31 p.m. 
2.  After the murders, the State undertook a "thump test" in which one officer tossed
casings into the air while standing on Engleton's trailer roof to see whether those casings, had
they been ejected from one of the murder weapons, might have hit the roof and rolled down to
land near the back door where numerous spent casings were found.  The result of that "thump
test" was that it was possible.  Commendably, the State admits that "[t]here is no evidence that
the dead and wounded individuals were actually shot from a position on the rooftop." 
3.  Spent .9 mm and .380 casings were found all over Engleton's property as he frequently
shot his guns around his trailer.  Crime scene investigators did not collect or preserve any of the
casings that appeared old, tarnished, or were partly buried in the dirt.
4.   On October 24th, the local newspaper reported that Engleton shot two of the deputies
with one of their own guns.  Two days later, on October 26th, Mr. Essary went to the police
station and told the officers that, when he gave his written statement to the police immediately
after talking with appellant on October 14th, he had forgotten to include the fact that appellant
had told him that Engleton "had gone too far when he shot the deputies with their own gun."
5.  Sara Lopez testified that, when appellant arrived at his brother's house at 9:00 p.m., she
asked him why he had taken so long.  Appellant told her that his car wouldn't start.  He said that
he had jumper cables and that he had had to move Engleton's car up next to his and jump start
his car.  Jesus Garza testified that he saw appellant drive Engleton's car around to the front of the
trailer at this time, which is consistent with what appellant told Sara 45 minutes later.
6.  Jesus Garza was watching; George Gorman was watching; Robert Hutton was watching;
Alexander Sanchez was watching; Ed Essary was watching.  None of them saw appellant or
appellant's car after 8:15 p.m.
