### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00298- CR

Dale Erwin Arldt, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ASTROP CO UNTY, 21ST JUDICI AL DISTRICT NO. 14,8 23, H ONO RAB LE CHRI STO P HER DARROW DUGGAN, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Dale Erwin Arldt was cha rged with criminal solicitation. See Tex. Penal Code § 15.0 3 (a ). S p ec i fi cally , he was char g ed with hiring someone to kill his wife, W endy Arldt, and 1 her presumed boy friend, Steven Maass. After a trial, the jury found Dale g uilty an d i m p o s ed a sentenc e of 40 y ear s’ confine ment. See id. §§ 15.03(d) (explaining that offe nse is first-deg ree felony if crime solicited was capital offe nse), 19.03(a) (3) (stating that person commits capital murder if he “employ s another to commit the murder for remune ration or the promise of remune ration”) ; see also id

. § 1 2

. 3 2 ( p r o v id in g th a

t p u n is h me n t r a

n g e f o r f ir s t- d e g r e e f

e lo n y is “ li f e o r . . . a n y te r m o f n o t mo r e than 99 y ear s or less than 5 y ear s”). Subsequent to the imposit ion of his sentenc e, Dale appea led his conviction. We will affirm the district c ourt’s judg ment of convic tion.

Be cause the victim and the defe ndant share last n am es , we will ref er to them by their 1 first names.DISCUSSIO N I n his sole issue on appea l, Dale c ontends that the district court “ err ed by failing to instruct the jury

on the af firmative de fense of re nunciation.” As m entioned above, Dale was charg e with criminal sol icitation. Under th e P en al Code, a person commits criminal solicitation “if, with intent that a capital felony

. . . be committed, he reque sts, commands, or attempts to induce another to eng ag e in specific conduct that, under the circ umstances surrounding his conduct as the actor believes them to be, would constitute the felony

or make the other a party to its commission.” Tex. Penal Code § 15.03(a)

. There is a n aff irmative defe nse to that crime that applies if “the actor counter manded his solicitation

. . . befor e commission of the object offe nse and took further aff irmative action that preve nted the commission of the object offe nse” “ under c ircumstance s manifesting a voluntary and com plete renunc iation of his criminal objective.” Id. § 15.04(b) (empha sis a dded); see also McG ann v. State , 30 S.W .3d 540, 547 (Tex. App.—For

t Worth 2000, pet. ref

’d) (explaining that “re nunciation must be voluntary and complete, and it must avoid commissi on or pre vent commission of the offe nse”)

.

On appea l, Dale contends that he was entitled to an i n s t ru ct ion reg arding the aff irmative defe nse. “As a g ener al rule, an acc used has the rig ht to an instruction on any defe nsive issue raised by the evidenc e, whether such evidenc e is strong or wea k, unimpeache d or contra dicted, and reg ardles s o f wh at the t rial court may or m ay not think about t he credibility of t he evidence.” Shaw v. State , 181 S.W .3d 450, 452 (Tex. App.—Waco 2005), aff’d , 243 S.W .3d 647 (Tex. Crim. App. 2007); s ee T ex . Penal C ode § 2.03(c) (explaining that defe nse i ssue “is not submitt ed to the jury unless evidenc e is admitted supporting the defe nse”)

. A defense is raised “by the evidenc e if

2there is some evidenc e, from any source , on eac h element of the defe nse that, if believed by the jury ,

would support a ra tional infere nce tha t tha t e lement is true .” Shaw , 243 S.W .3d at 657-58. When deter mining whether a defe nse has been raised by the evidenc e, the court “m u s t re ly on its own judgme nt, formed in the light of its own common sense and experience , as to the limit s of ra tional in f e r e n c e f r o m th e f a c ts p r o v e n . ” I

d

. a t 6 5 8

. O n a

p p e a l, th e is s u e o f “ [w ]h e th e r a d e f e n s e is s u p p o r te d by the evidenc e is a suff

iciency question review able . . . a s a question of law .” Id. W h en arg

uing that an instruction should have been provided, Dale points t o t h e te s ti mo n y o f B r ia n D is mu k e s . D is mu

k e s w a s a d e te c ti v e w it

h th e T e xa s D e p a

r tm e n t o f Pu

b li c Sa f e ty who went underc over to inve stiga te an alleg ation that Dale was seeking to hire someone to kill his wife and Maass. I n his testimony , Dismukes explained that he phoned Da l e an d told him that a mutual acqua intance of theirs had informed him about Dale’ s intentions to hire someone. Fur ther, Dismukes testified that the two exchang ed sever al phone calls in which they discussed taking “ca re of [W endy ].” I n addition, Dismukes stated that he told Dale that he was interested in the job and that the two ultimately

met at a c onvenienc e store to f inalize the details. Reg arding their conve rsation
at the conve nience store, Dismukes stated that af ter the two discusse d the plan in detail, he a sked 2 Dale to sha ke his hand to solidify the ag ree ment but that Dale r efuse d. The ref usal to shake Dismukes’s hand forms the basis for Dale’ s issue on appea l. I n

essenc e, Dale contends that by failing to shake Dismukes’s hand, he ref used to “sea l the deal,” which constituted a voluntary

and complete renunc iation of hi s criminal solicitation. As support for this

asser tion, Dale re fer s to the historical signif icanc e of ha

ndshakes.
During the trial, Dismukes explained that the audio equipment that h ad b ee n set up to 2 rec ord the c onversa tion between him and D ale a t the convenie nce store malfunctioned. 3Although Dale corr ectly points out that Dismukes testified that Dale ref used to shake his hand, the rema inder of Dale’ s testimony conce rning his inter action with D ale prior to a nd afte r the offe red handshake undermines Da le’s asse rtion that an instruction should ha ve been provided. Cf. Prewitt v. Stat e , 133 S.W .3d 860, 863 (Tex. App.—Amar illo 2 0 0 4 , p et
. ref ’d) (providing that when deter

mini n g w h e th e r le s s e r - in c lu d e d

- o f f e n s e instruction should be g iven, context of statements relied upon by defe nd ant must be considere d). Reg arding the discussion occur ring befor ehand, Dismukes testified that Dale communicated various rea sons why he wanted to hire someone to kill Wendy and Maa ss, pr ovided information about Wendy ’s work a nd Maass’s home , offe red to lend

a shotgun fo r t h e job, discussed way s to minimi ze evidenc e left at the scene , and ag ree d to pay $5,000 for the task. Cf. Mc Gann , 30 S.W .3d at 548 (conc luding that defe ndant was not entitled to

renunc iation instruc tion even thoug h defe ndant only g ave pa rtial pay ment and testified that he did
not believe hit man would proce ed without full pay ment beca

use defe ndant never expressed desire
to abandon plan and beca

use defe ndant g ave hit man information to further plot, including his wife’ s addre ss and information about her daily routines). Fur thermore , Dismukes rela ted that Dale did not

seem nervous and was eag er “to g et down to bu s i n es s and

. . . work out the details of what [t hey

wer e] g oing to do.” I n addition, Dismukes rec alled that Dale stated that if he could not find any one to do the job, he “wa s scar ed that he w as g oing to do it himself.”

Reg arding the even t s o cc urring afte r the offe red handshake , Dismukes stated that when he asked Dale why he refused to shake hands, Dale “said, basically , that he felt if we shook hands

. . . and I was a police office r, that would g et him in more trouble. That would make it officia l, basica lly .” I n other words, Dismukes rela ted that Dale’ s ref usal was motivated by a fea r of further

4punis h m en t ra t her than a “a voluntary and complete renunc iation of his criminal objective.” See

Tex. Penal Code § 15.04(b). I n addition, Dismukes stated that afte r Dale ref used to shake his hand, they continued to discuss the details of the murder plot until Da le was arr ested and that Dale never indicated that he was c hang ing his mind.

I n light of the prec eding , we conclude that there was no evidenc e that would have justified the inclusion of an instruction on renunc iation in the jury char g e. Acc ording ly , we also conclude that the district court prope rly ref used Da le’s re quest and ove rrule his issue on a ppeal.

CONCLUSION Having overr u l ed Da le’s issue on appea l, we aff irm the district court’s judgme nt of convic tion.

__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Rose, and Goodwin Affir med Filed: Aug ust 28, 2014 Do Not Publish

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