Arnott v. State

OPINION

ON APPELLANT’S MOTION FOR REHEARING

ROBERTS, Judge.

On original submission in this case, the majority affirmed on the basis that this was a conspiracy. A conspiracy was not pled, proven, or briefed in this case. It is axiomatic that before such exhibits could be admissible there must be proof that the act or declaration is, in fact, the work of a co-conspirator. 2 Branch’s Ann.P.C., Sec. 721-722.

That opinion primarily relied upon three cases to support its conspiracy theory. We have examined these cases and find the following:

In Phelps v. State, 462 S.W.2d 310 (Tex.Cr.App.1970), the…