in the Matter of M.E.R., a Juvenile

In the Matter of M.E.R., a Juvenile

IN THE

TENTH COURT OF APPEALS

No. 10-98-175-CV

IN THE MATTER OF M.E.R., A JUVENILE

 

                                 

From the 52nd District Court

Coryell County, Texas

Trial Court # 1227

                                                                                                                

O P I N I O N

                                                                                                               

      M.E.R. was charged with delinquent conduct by committing the offense of burglary of a habitation. He pled “not true.” A jury found that the conduct had occurred and the court placed him on one year’s probation, community service hours, and $12,215 in restitution. He appeals, asserting three issues for review. We will affirm the judgment.

FACTS

      Sandy Ferrell’s husband met an untimely death in their trailer home. Not wishing to remain at the home where he died, Ferrell and her children moved out immediately without taking the time to move their belongings. Ferrell intended to get the belongings at a later date. Paul and Novia Fisher, Ferrell’s neighbors, agreed to keep an eye on the place. On May 29, 1997, the Fishers noticed that the Ferrell home looked as though it had been burglarized, and they called the police. Deputy David Dyer responded to the call. When he arrived, Dyer noticed that several items were on the ground outside a broken window. These items included a ball, a bat, and a “lava” lamp. Dyer testified that these items led him to believe that children had broken into the home, although he found no other evidence tending to show who committed the crime.

      The next day, Paul Fisher called Dyer and told him that Dustin Ferrell, one of the Ferrell children, had mentioned an abandoned house where kids would often play. Paul and Dustin had gone to the house and discovered some of the items that had been taken from the Ferrell’s. Dyer went to the house and discovered an asthma inhaler with M.E.R.’s name on it. At that time, M.E.R. became a suspect in the burglary.

      A few days later, Dyer was patrolling the neighborhood and saw M.E.R. and J.P.S. walking down the road. He stopped them and asked their names. M.E.R. did not give his true name and denied knowing M.E.R. Dyer also asked the boys if they knew of the abandoned building where M.E.R’s inhaler was found, to which they responded that they did not.

      J.P.S. indicated that he needed to go home because of the lateness of the day, and Dyer offered to drive him. Once the three arrived at the home, Dyer spoke with J.P.S.’ stepfather, Charles Walker. Walker told Dyer that he had found a cooler containing various items in the wooded area of his yard a couple of days earlier. Walker told Dyer that he had asked J.P.S. and M.E.R. about the cooler and that M.E.R. indicated it belonged to him. Dyer then asked the boys if the cooler was still around, and J.P.S. said that it was still in the woods. J.P.S. and M.E.R. then got the cooler and brought it to Dyer. Dyer asked the boys if anything else had been found in the woods, to which they replied that they had found some other things. M.E.R. told Dyer that he had a Nintendo game at his house that they had found, so he and Dyer went to his home to retrieve it. Once at the home, M.E.R. gave Dyer the game plus some baseball cards and a bike.

      On June 9, Paul Fisher again contacted Dyer with information about the burglary. He told Dyer that his wife, Novia, overheard M.E.R. “bragging” that he and J.P.S. had burglarized the Ferrell home. It wasn’t until December of 1997 that Dyer finally brought J.P.S. into custody and took a statement from him. In that statement, J.P.S. admitted that he and M.E.R. committed the burglary. J.P.S. and M.E.R. were both charged as juveniles with burglary of the Ferrell home.

ISSUES

      In his first issue, M.E.R. challenges the sufficiency of the evidence to corroborate J.P.S.’ testimony. His second issue complains that the court erred in failing to instruct the jury on accomplice-witness testimony. His third issue asserts that trial counsel was ineffective for failing to request a jury instruction on accomplice-witness testimony.

ACCOMPLICE-WITNESS TESTIMONY

      In determining whether a witness is an accomplice, we look at the witness’ participation before, during or after the commission of the offense. McFarland v. State, 928 S.W.2d 482, 514 (Tex. Crim. App. 1996) (citing Kunkle v. State, 771 S.W.2d 435, 439 (Tex. Crim. App. 1986)); Moron v. State, 779 S.W.2d 399 (Tex. Crim. App. 1985). There must be an affirmative act committed by the witness to promote the commission of the offense. McFarland, 928 S.W.2d at 514 (citing Kunkle, 771 S.W.2d at 441). J.P.S. was charged with the same offense as M.E.R. and he admitted to the conduct. Thus, he was an accomplice-witness as a matter of law. See Holladay v. State, 709 S.W.2d 194, 196 (Tex. Crim. App. 1986) (witness was accomplice because he had been charged with committing same offense as appellant).

      Section 54.03(e) of the Family Code requires corroboration of accomplice testimony in juvenile delinquency proceedings:

An adjudication of delinquent conduct or conduct indicating a need for supervision cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the child with the alleged delinquent conduct or conduct indicating a need for supervision; and the corroboration is not sufficient if it merely shows the commission of the alleged conduct.

Tex. Fam. Code Ann. § 54.03(e) (Vernon 1996). The accomplice-witness language in section 54.03(e) is identical in substance to article 38.14 of the Code of Criminal Procedure. In the matter of C.M.G., 905 S.W.2d 56, 58 (Tex. App.—Austin 1995, no writ). Therefore, we look to the decisions of the Court of Criminal Appeals under article 38.14 as guidelines for the interpretation of section 54.03(e). Id.

      Article 38.14 states that a conviction “cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.” Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979).      The rationale behind the accomplice-witness rule is that the accomplice is a discredited witness, and his testimony is to be carefully scrutinized because the accomplice may have an interest in the outcome of the trial and may be a corrupt source. Beathard v. State, 767 S.W.2d 423, 429 (Tex. Crim. App. 1989); Brosky v. State, 915 S.W.2d 120, 137 (Tex. App.—Fort Worth 1996, pet. ref'd).

      The test for determining whether evidence is sufficient to corroborate accomplice testimony is to first eliminate from consideration the accomplice-witness' testimony and then examine the other inculpatory evidence to ascertain whether the remaining evidence independently "tends to connect" the defendant with the offense. McDuff v. State, 939 S.W.2d 607, 612 (Tex. Crim. App. 1997); Burks v. State, 876 S.W.2d 877, 887 (Tex. Crim. App. 1994); Ashford v. State, 833 S.W.2d 660, 665 (Tex. App.—Houston [1st Dist] 1992, no pet.). Accordingly, we will review the facts to determine whether J.P.S.’ testimony is adequately corroborated.

      J.P.S. admitted that he and M.E.R. burglarized the Ferrell home. He identified the cooler and other items recovered as things that they had taken. M.E.R. lied about his identity. He told Walker that some of the items from the Ferrell burglary belonged to him, yet told Dyer that he and J.P.S. found the items. M.E.R.’s asthma inhaler was found in an abandoned building along with some of the items taken from the house. Many of the stolen items were located at M.E.R.’s house. Novia Fisher overheard M.E.R. bragging that he and J.P.S. broke into the trailer. This evidence “tends” to connect M.E.R. with the offense. Thus, the accomplice-witness testimony is adequately corroborated. McDuff, 939 S.W.2d at 612. Issue one is overruled.

THE CHARGE

      The court did not instruct the jury that the accomplice-witness testimony must be corroborated. M.E.R. did not request the instruction. Article 38.14 is not worded, however, in such a way as to require a request for the instruction—its plain meaning disallows any conviction based upon the uncorroborated testimony of an accomplice. Howard v. State, 972 S.W.2d 121, 126 (Tex. App.—Austin 1998, no pet.). Unlike defensive issues such as those described in Posey v. State, 966 S.W.2d 57 (Tex. Crim. App. 1998), jury instructions regarding accomplice-witness testimony are laws “applicable to the case.” Howard, 972 S.W.2d at 126. Thus, the fact that the court failed to include an instruction on accomplice-witness testimony in the jury charge was error, regardless of whether an objection was made. Saunders v. State, 817 S.W.2d 688, 693 (Tex. Crim. App. 1991) (court's failure to instruct jury of need to corroborate accomplice testimony in arson prosecution was critical to trial's outcome and effectively denied defendant fair trial); Solis v. State, 792 S.W.2d 95, 97 (Tex. Crim. App. 1990); Howard, 972 S.W.2d at 126 (citing Posey, 966 S.W.2d at 60); see also Moore v. State, 984 S.W.2d 783, 787 (Tex. App.—Waco 1999, no pet.) (When the evidence clearly shows that the witness is an accomplice as a matter of law, the trial court must so instruct the jury.). The fact that defense counsel failed to object to the omission of an instruction is only relevant in determining which standard of harm to apply. See Saunders, 817 S.W.2d at 693; Almanza v. State, 686 S.W.2d 157, 172 (Tex. Crim. App. 1985) (op. on reh'g)). Almanza sets forth the appropriate standard of review and is applicable to juvenile cases. See In re E.F., 986 S.W.2d 806, 810 (Tex. App.—Austin 1999, no pet. h.); Matter of K.W.G., 953 S.W.2d 483, 488 (Tex. App.—Texarkana 1997, no pet.).

HARM

      Having found error, we must determine whether the error in this circumstance caused “egregious harm.” Almanza, 686 S.W.2d at 172. In Saunders v. State, the Court of Criminal Appeals assessed the degree of harm resulting from a trial court's failure to instruct the jury that accomplice-witness testimony must be corroborated before it may be used as a basis for conviction. 817 S.W.2d at 692. In determining whether there was egregious harm, the Court focused on whether the corroborating evidence was so "weak and unconvincing" that the State's case for conviction would have been clearly and significantly less persuasive had the jury been properly instructed. Id. As outlined above, there was substantial evidence to corroborate J.P.S.’ testimony. We cannot say that this evidence is so weak and unconvincing that the State’s case would have been less persuasive had the jury been properly instructed. Thus, there was no egregious harm resulting from the court’s failure to properly instruct the jury. See id. Issue two is overruled.

INEFFECTIVE ASSISTANCE OF COUNSEL

      M.E.R.’s final point asserts that his counsel was ineffective when he failed to request a charge concerning the accomplice-witness testimony. This complaint has not been presented to the trial judge.

      We have observed that some claims of ineffective assistance of counsel can be determined from the trial record. Gonzalez v. State, 994 S.W.2d 369, 374, n.3 (Tex. App.—Waco 1999, no pet.). For example, a defense attorney's failure to object to the omission of a jury instruction on the necessity of corroboration of accomplice-witness testimony may amount to ineffective assistance of counsel. See Ex parte Zepeda, 819 S.W.2d 874 (Tex. Crim. App. 1991); Howard, 972 S.W.2d at 128 (citing Posey, 966 S.W.2d at 62 (Womack, J., concurring) (defense attorney's failure to object to jury-charge omission would almost always amount to ineffective assistance of counsel), and Posey, 966 S.W.2d at 59-60 (Mansfield, J., concurring) (while failure to include instruction on defensive issue of mistake of fact is not trial court's error, failure of defense counsel to request such instruction is ineffective assistance of counsel)). Although M.E.R.’s claim of ineffective assistance might be determined from the record, we have held that claims not presented to the trial court are not preserved for our review. Gonzalez, No. 98-268-CR, slip op. at 8, n.3. We now apply this preservation rule to juvenile cases. Tex. R. App. P. 33.1(a). Issue three is overruled.

      The judgment is affirmed.

 

                                                                       BILL VANCE

                                                                       Justice

Before Chief Justice Davis,

          Justice Vance, and

          Justice Gray

Affirmed

Opinion delivered and filed June 23, 1999

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normal'>The Inventory List

  Pfeffer prepared an inventory list immediately after the fire.  Previously, the list of items included undamaged items and items of Drilling’s personal property.  See Drilling, 134 S.W.3d at 470.  We abated the appeal, and ordered the trial court to conduct a new restitution hearing so these problems could be resolved.  Id. at 471.  At the new hearing, the suspect items were excluded and new calculations were made.  However, Pfeffer, consistent with her previous testimony, testified that the list was not that of destroyed property alone, but of the entire contents of the house, and that the list was never meant to demonstrate loss.  Pfeffer could not identify which items on the list were undamaged by the fire, because after the fire she left the area for three months, and when she returned everything was either ruined by water, or stolen.  Despite these inconsistencies, Pfeffer’s testimony was accepted by the trial court, and Drilling did not specifically object to the admissibility of this evidence.  Therefore, we must include these items in our analysis.

          Despite our remand, no direct testimony of fair market value was elicited.  Restitution must be ordered for the value of the property on the date of destruction, and not the purchase price.  See Tex. Code Crim. Proc. Ann. art. 42.037(b)(i) (Vernon 2003); Drilling, 134 S.W.3d at 470.  Drilling testified that some of the items on the list were not purchased, but were a gift.  Also he stated that the value Pfeffer listed for some items was either a highly inflated purchase price or the original purchase price.  However, an owner may testify either in terms of purchase price or replacement cost, and is presumed to be testifying to an estimation of fair market value.  See Sullivan v. State, 701 S.W.2d 905, 909 (Tex. Crim. App. 1986).  Drilling and Pfeffer presented two different accounts concerning the value of the items in the list, and the trial court chose to believe Pfeffer.  While we might have arrived at a different conclusion, we cannot say that the trial court’s decision was outside the “zone of reasonable disagreement.”  Gonzalez, 117 S.W.3d at 839.

The Testimony of the Insurance Agent

          Drilling also argues that the court abused its discretion by awarding restitution to the insurance company because the insurance agent’s testimony does not provide a sufficient factual basis, and because the restitution is to be paid to someone other than the victim.

          While there was no specific testimony of the fair market value of Pfeffer’s house, the insurance agent testified that the company paid Pfeffer an amount suggested by the company’s claims adjustor and investigatory team.  References to the amount an insurance company has paid is sufficient to prove value.  Jimenez v. State, 67 S.W.3d 493, 506 (Tex. App.—Corpus Christi 2002, pet. ref’d) (holding insurance payment to victim sufficient to prove value despite no evidence of fair market value).  Furthermore, in the interest of justice, restitution may be made to a person who has compensated the victim for the loss to the extent that person has paid compensation.  Maloy v. State, 990 S.W.2d 442, 444 (Tex. App.—Waco 1999, no pet.).  This includes insurance companies that compensate victims.  See Flores v. State, 513 S.W.2d 66, 69-70 (Tex. Crim. App. 1974); Narvaez v. State, 40 S.W.3d 729, 730 (Tex. App.—San Antonio 2001, pet. dism’d) (trial court did not abuse its discretion by ordering appellant to pay restitution to a hospital for the victim’s medical bills); Maloy, 990 S.W.2d at 444.  Finding no abuse of discretion, we overrule Drilling’s second issue.

Conclusion

          Having overruled all of Drilling’s issues, we affirm the judgment of the trial court.

 

 

 

                                                                   FELIPE REYNA

                                                                   Justice

 

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

          (Chief Justice Gray concurring and dissenting)

Affirmed

Opinion delivered and filed February 23, 2005

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