11th Court of Appeals
Eastland, Texas
Opinion
John William Burrows
Appellant
Vs. No. 11-01-00147-CR B Appeal from Dallas County
State of Texas
Appellee
John William Burrows owned a plumbing business that had financial problems. The business was housed in a building owned by Burrows. Burrows filed for bankruptcy in 1998. On January 22, 1999, the building was destroyed in a three-alarm fire. James Kennedy and Michael Deion Beavers confessed to setting the fire for Burrows.
Burrows was convicted of arson in a jury trial and sentenced to 10 years confinement and a $10,000 fine. Burrows brings three issues on appeal. We affirm the judgment of the trial court.
In his first issue, Burrows urges that the evidence is insufficient to corroborate the accomplice testimony connecting him to the offense.
A conviction cannot stand on accomplice testimony unless corroborated by other evidence tending to connect the defendant with the offense. TEX. CODE CRIM. PRO. ANN. art. 38.14 (Vernon 1979). It is not necessary that the corroborating evidence directly connect the defendant to the crime or that it be sufficient by itself to establish guilt; it need only tend to connect the defendant to the offense. Cathey v. State, 992 S.W.2d 460, 462 (Tex.Cr.App.1999). If the combined weight of the non-accomplice evidence tends to connect the defendant to the offense, the requirement of Article 38.14 has been fulfilled. Cathey v. State, supra at 462.
The test for weighing the sufficiency of corroborative evidence is to eliminate from consideration the testimony of the accomplice witness and then examine the testimony of other witnesses to ascertain if there is evidence which tends to connect the accused with the commission of the offense. Hernandez v. State, 939 S.W.2d 173, 176 (Tex.Cr.App.1997).
Kennedy and Beavers were accomplices. Kennedy and Beavers testified that they started the fire in return for payment from Burrows. Kennedy worked for Burrows as a plumber assistant in 1998 and 1999. Kennedy said that Burrows approached him the Friday before the fire and said that the company was having financial problems and that he needed to Astick it@ to the insurance company. Burrows asked him to burn the building. Burrows told him that whoever participated could not be paid until he received the insurance money. Burrows told Kennedy that he could have any of the equipment in the building. Burrows also told Kennedy that he would fill up the gas trailer and leave it inside the building. Kennedy met with Burrows the night of the fire, and Burrows assured him that the doors to the building were unlocked and that the alarm was off. Burrows also paid Kennedy $300 at this meeting and told him to make sure the walls were soaked.
Beavers worked for Burrows for four or five years as a plumbing helper. Beavers said that Kennedy told him that Burrows wanted them to burn down the building because he was broke. The night of the fire, Beavers and Kennedy filled up two trucks with equipment from the shop and then took the equipment to Kennedy=s house. Beavers and Kennedy left everything in the garage and returned to the shop. They then took gasoline from the trailer and poured it on the vehicles in the shop and on the walls. When they were finished, Kennedy lit some trash by the front door of the building. As they left, Beavers heard explosions and saw the fire.
Eliminating the accomplice testimony, the record contains the following evidence. George R. Burridge, an insurance agent, said that on January 20, 1999, Burrows came to his office and that together, they decided to raise the insurance coverage on the building to $800,000. The coverage of $800,000 was put into effect on January 20.
Mitchell B. Sandlin, a supervisor with Hartford Insurance Group, testified that: (1) a guard dog that was usually kept on the premises was not there the night of the fire; (2) a fishing boat that was usually kept in the building had been moved outside; and (3) a tank trailer with 120-gallon capacity had been parked inside the building and filled with 110 gallons of gas the day of the fire. Also, there was a nonworking Mercedes found inside the building. The automobile=s engine had been removed and placed in the trunk. Because the business was having financial difficulties, Sandlin said that these facts raised concerns about the fire.
Christopher McLeod is a claims supervisor for Amica Mutual Insurance Company. Amica issued personal automobile policies for Burrows, insuring the Mercedes and a Ford pickup. Burrows filed a claim for loss on the Mercedes and the Ford pickup which were damaged in the fire. McLeod said that Burrows had refused to cooperate with the adjuster and refused a written request for an examination under oath.
Ann Wilhite, an employee of Burrows who did accounts receivable work, said that Burrows instructed her to keep the safe unlocked the night of the fire. Randy Buchanan worked for Burrows from 1996 until the fire. He also attended church with the Burrows. Buchanan recalled that the Mercedes was not running and that it was kept in the parking lot for the past year before the fire. Buchanan testified that he helped bring the Mercedes inside the warehouse on January 22, 1999. When he opened the door of the Mercedes the Sunday after the fire, it smelled like gasoline. Buchanan said that Burrows usually drove the Ford pickup but that, when he went home the night of the fire, Burrows drove a company truck.
Because it tends to connect Burrows to the offense, the evidence is sufficient to corroborate the accomplice testimony. Burrows=s first issue is overruled.
For clarity, we next address Burrows= third issue. In this issue, Burrows asserts that the court amending the indictment lacked jurisdiction to amend the indictment without a proper transfer order.
The case was assigned to the 282nd District Court. The order granting the motion to amend the indictment was signed by Judge Henry Wade, Jr., Judge of the 292nd District Court. The Presiding Judge of the 282nd District Court, Judge Karen Greene, was absent and did not sign the order. Burrows asserts that, based on TEX. CODE CRIM. PRO. ANN. art. 4.16 (Vernon 1977), a transfer order was required to allow another Dallas County district judge to rule on the motion to amend the indictment.
Article 4.16 provides:
When two or more courts have concurrent jurisdiction of any criminal offense, the court in which an indictment or a complaint shall first be filed shall retain jurisdiction except as provided in [TEX. CODE CRIM. PRO. ANN. art. 4.12 (Vernon Supp. 2002)].
Burrows argues that, without a transfer order, the latter court=s action was voidable and erroneous. Burrows objected that the 292nd District Court did not have jurisdiction to consider the State=s Motion to Amend. We disagree.
In a county where there are two or more district courts, in cases of absence, sickness, or disqualification of any of the judges, any other of the judges may hold court for him. TEX. GOV=T CODE ANN. ' 24.303 (Vernon 1988). Any of the judges may hear and determine any part of any case or proceeding pending in any of the courts, and any other of the judges may complete the hearing and render judgment in the case or proceeding. Any of the judges may hear and determine motions and all preliminary matters and may enter judgment or order on them in the court in which the case or proceeding is pending without transferring the case or proceeding.
Judge Wade is specifically given jurisdiction in the Government Code to act for the judge of the 282nd District Court in that judge=s absence. Burrows= third issue is overruled.
In his second issue, Burrows asserts that the trial court erred in granting the State=s motion to amend without giving him prior notice. The State filed a motion to amend the indictment on January 22, 2001. On that same day, an order amending the indictment was signed, and the indictment was actually amended.[1]
Burrows filed a motion challenging the amended indictment based on the lack of notice that the indictment was about to be amended. The trial court denied the motion. The prosecutor acknowledged that Burrows was not given notice of the amendment until after the indictment had been amended.
TEX. CODE CRIM. PRO. ANN. art. 28.10(a) (Vernon 1989) provides:
After notice to the defendant, a matter of form or substance in an indictment or information may be amended at any time before the date the trial on the merits commences. On the request of the defendant, the court shall allow the defendant not less than 10 days, or a shorter period if requested by the defendant, to respond to the amended indictment or information.
Burrows urges that violations of TEX. CODE CRIM. PRO. ANN. art. 28.10 (Vernon 1989) are no longer subject to a harmless error analysis but, instead, require automatic reversal, relying on Hillin v. State, 808 S.W.2d 486, 488 (Tex.Cr.App.1991). Simply because an error is not subject to the harmless error rule on appeal does not mean that any error is not curable at the trial stage when brought to the attention of the court. Article 28.10 provides for a 10-day notice prior to trial for amending the indictment. Article 28.10 was designed to address the situation where the State amends the indictment the day of trial or during trial, as in Hillin, thereby acting as a surprise to the defense. The proper remedy in such a situation would be a continuance. In this case, Burrows received actual notice of the amendment more than 10 days prior to trial. Burrows received all of the relief he was entitled to at trial.
Moreover, the amended indictment does not include substantive changes from the original indictment. Article 28.10(c) prohibits the State from amending the indictment over a defense objection if such amendment results in an additional or different offense. An analysis of Article 28.10(c) applies to an indictment amendment under Article 28.10(a). Hillin v. State, supra at 488. If the defendant objects to an amendment under Article 28.10(a), the trial court may freely overrule him and does not commit error unless the amendment charges the defendant with an additional or different offense or prejudices his substantial rights (as prohibited by Article 28.10(c)). Hillin v. State, supra at 490. Burrows= second issue is overruled.
Because we have overruled each of Burrows= issues on appeal, we affirm the judgment of the trial court.
W. G. ARNOT, III
April 25, 2002 CHIEF JUSTICE
Do not publish. See TEX.R.APP.P. 47.3(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.
[1]The original indictment reads as follows:
JOHN WILLIAM BURROWS, defendant, on or about the 22nd day of January, A.D., 1999, in said county and state, committed arson by starting a fire or causing an explosion with intent to destroy or damage any building or vehicle knowing that it is insured against damage or destruction, or knowing that it is subject to a mortgage or other security interest, or knowing that the building or vehicle was within the limits of an incorporated city or town and said defendant by commission of said offense did thereby cause bodily injury to be suffered by David Hill, against the peace and dignity of the State.
The amended indictment reads:
JOHN WILLIAM BURROWS, defendant, on or about the 22nd day of January, A.D., 1999, in said county and state, then and there did intentionally start a fire and cause an explosion by using flammable accelerants with intent to destroy and damage any building and vehicle knowing that it was insured against damage and destruction, and knowing that it was subject to a mortgage and other security interest, and knowing that the building and vehicle were within the limits of an incorporated city and town, and said defendant, by commission of said offense, did thereby cause bodily injury to be suffered by David Hill, against the peace and dignity of the State.