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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00194-CR
______________________________
JACOB CHARLES MCNABB, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 71st Judicial District Court
Harrison County, Texas
Trial Court No. 10-0152X
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
At Jacob Charles McNabb’s jury trial for arson, the evidence included video recordings and photographs, retrieved from McNabb’s cell phone, depicting the fire at a former Marshall school building and including McNabb’s narration of the conflagration, “Damn, and to think we did that. That is so f****** awesome.”
Central to the case against McNabb was testimony from Gavin McKinley and Steven Gerald Murray, Jr., two friends who had been at the school with McNabb about the time the fire was started.[1] McKinley and Murray, also charged with arson, testified that McNabb set fire to a broken door at the school with a cigarette lighter, that Murray blew it out, that McKinley and Murray left the building, leaving McNabb behind, that Murray assumed McNabb was lighting the door again, as the other two stood outside the school.
From his conviction for arson and his fifteen-year sentence, McNabb appeals. We affirm the trial court’s judgment, because (1) omission of an accomplice-witness instruction was not egregiously harmful, (2) the jury instruction on the law of parties was not erroneous, and (3) alleged noncompliance with Article 36.27 was not preserved.
(1) Omission of an Accomplice-Witness Instruction Was Not Egregiously Harmful
Our review of an asserted jury charge error involves a two-step process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994); see also Sakil v. State, 287 S.W.3d 23, 25–26 (Tex. Crim. App. 2009). Initially, we determine whether error occurred, and then evaluate whether sufficient harm resulted from the error to require reversal. Abdnor, 871 S.W.2d at 731–32.
The statutory accomplice-witness instruction provides, “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.”[2] Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005). “An accomplice is one who participated in an offense, before, during, or after its commission, to the extent that he can be charged with the offense or with a lesser-included offense.” Herron v. State, 86 S.W.3d 621, 631 (Tex. Crim. App. 2002). If a prosecution witness is an accomplice as a matter of law, the trial court must instruct the jury accordingly. Id. The trial court’s failure to do so is error. Id. “A prosecution witness who is indicted for the same offense with which the defendant is charged,” or “a lesser included offense based upon alleged participation in commission of the greater offense” is an accomplice as a matter of law. Id. (citing Ex parte Zepeda, 819 S.W.2d 874, 876 (Tex. Crim. App. 1991)).
In this case, McKinley and Murray were charged with the offense of arson as co-defendants to McNabb. Therefore, both were accomplices as a matter of law, and the trial court was required to instruct the jury accordingly. Because the jury charge failed to include an accomplice-witness instruction, the charge was erroneous. The State concedes this point.
Yet, an erroneous or incomplete jury charge does not result in automatic reversal of the conviction or punishment. Abdnor, 871 S.W.2d at 731. We now decide whether the error was harmful. Because McNabb did not preserve his complaint at trial, we must decide whether the error was so egregious and created such harm that he did not have a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g); Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008); Boones v. State, 170 S.W.3d 653, 660 (Tex. App.—Texarkana 2005, no pet.). Egregious harm occurs where an error affects the very basis of a case, deprives the defendant of a valuable right, vitally affects a defensive theory, or makes the case for conviction or punishment clearly and significantly more persuasive. Boones, 170 S.W.3d at 660 (citing Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991)). This is a difficult standard to prove, and it must be determined on a case-by-case basis. Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002). The “actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.” Almanza, 686 S.W.2d at 171.
“Non-accomplice evidence can render harmless a failure to submit an accomplice witness instruction by fulfilling the purpose an accomplice witness instruction is designed to serve.” Herron, 86 S.W.3d at 632. Under the egregious harm standard, the omission of an accomplice witness instruction is generally harmless unless the corroborating (nonaccomplice) evidence is “so unconvincing in fact as to render the State’s overall case for conviction clearly and significantly less persuasive.” Id.
Here, beyond the testimony of the two accomplices, as referenced above, we have McNabb’s photographs, video recordings, and audio narration that effectively confessed to the arson. The evidence at McNabb’s trial also included testimony from Britton Podzymeny from whose front porch—across the street from the burning school—McNabb, McKinley, and Murray watched the fire; Podzymeny testified that the three appeared “enthused, I mean excited” to see the fire and that there was a cigarette lighter present at the time.
Also, Chief Reginald Cooper testified that McNabb’s statements during his interview did not comport with Cooper’s investigation. For example, McNabb claimed he had repeated his version of events of that day to several people who could corroborate his tale. However, Cooper was unable to locate anyone that would support McNabb’s rendition of the story. McNabb claimed that he had been living with Stephen and Toni Jones, but could not tell Cooper how he could find them in order for Cooper to question the Joneses. Cooper also told the jury that text messages from McNabb’s cell phone led him to believe McNabb was trying to set up a false alibi. He testified, “Chelsie Cocoa was the friend that Mr. McNabb mentioned that could corroborate his story.” The first text message to Cocoa from McNabb’s cell phone was “[Murray] told them I did it. They’re going to call you and ask you if I told you [Murray] did it, that it got lit twice and that I blew it out the first time.” Cocoa texted back, “Wow. What do I say?,” and McNabb replied, “We will go over everything when you get out of school. Just don’t talk to them until then.”[3]
All that evidence tended to connect McNabb to the commission of the arson. Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009). We do not find that the nonaccomplice-witness evidence—the cell phone evidence, paired with Podzymeny’s and Cooper’s testimony—was “so unconvincing in fact as to render the State’s overall case for conviction clearly and significantly less persuasive.” Herron, 86 S.W.3d at 632. McNabb has failed to demonstrate that the omission of the accomplice-witness instruction caused egregious harm. This point is overruled.
(2) The Jury Instruction on the Law of Parties Was Not Erroneous
The trial court’s charge during guilt/innocence instructed the jury that: “All persons are parties to an offense who are guilty of acting together in the commission of an offense.”[4] McNabb argues on appeal[5] that this instruction “presumes that persons acting together . . . are guilty. Only [Murray] had pled guilty . . . . The underscored language lessens the burden of proof for the State.” The State argues that the complained-of instruction “is a very general statement of what an accomplice is, someone ‘guilty of acting together’ to commit an offense.” We agree. See Prystash v. State, 3 S.W.3d 522, 542 n.1 (Tex. Crim. App. 1999) (finding identical instruction in line with Chapter 7 of Texas Penal Code). “One who ‘acts together [with another] in the commission of an offense’ will usually be a party under sections 7.01 and 7.02 of the Penal Code.” Rushing v. State, 962 S.W.2d 100, 101 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (finding no error in trial court’s overruling of defendant’s objection to identical instruction). We have stated, with respect to identical instructions, that such a charge “adequately informed the jury that it was to determine whether [a defendant] was guilty as a party to the offense.” Richbourg v. State, No. 06-00-00095-CR, 2001 WL 476510, at *1–2 (Tex. App.—Texarkana May 8, 2001, pet. ref’d) (mem. op., not designated for publication). Accordingly, the trial court’s submission of the complained-of sentence was not erroneous. We overrule this issue.
(3) Alleged Noncompliance with Article 36.27 Was Not Preserved
After reading the jury’s verdict on guilt/innocence, the trial court made the following statement:
Obviously, you are through with your portion of this process. I can tell you on the front end, how appreciative we are of your time and service. And it is obvious that you put some time to this matter as reflected by the time that you have been out on deliberation and the note that you sent out to the Court and everything.
The clerk’s record does not contain any jury note or response by the trial court if one was made. No further reference is made to the note in the reporter’s record. McNabb argues that the trial court’s failure to include the note in the record constituted noncompliance with Article 36.27 of the Texas Code of Criminal Procedure,[6] and that the error was fundamental. We have previously held that failure to object or bring the error to the trial court’s attention fails to preserve any alleged noncompliance with Article 36.27. Villarreal v. State, 205 S.W.3d 103, 105–06 n.2 (Tex. App.—Texarkana 2006, pet. dism’d, untimely filed); Hudson v. State, 128 S.W.3d 367, 377 (Tex. App.—Texarkana 2004, no pet.); Talley v. State, 909 S.W.2d 233, 235 (Tex. App.—Texarkana 1995, pet. ref’d). This is because we presume the trial court acted in a manner consistent with the statute. Green v. State, 912 S.W.2d 189, 192 (Tex. Crim. App. 1995); Talley, 909 S.W.2d at 235. The Texas Court of Criminal Appeals has held that, “[s]ince we presume the trial court’s response was in open court and in appellant’s presence, we also presume appellant agreed to it. Therefore, appellant waived any error, and the Almanza standard is inapplicable.” Green, 912 S.W.2d at 193.
Here, because McNabb failed to object to alleged noncompliance with Article 36.27 of the Texas Code of Criminal Procedure, he has failed to preserve this issue for review. We overrule this issue.[7]
We affirm the trial court’s judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: June 8, 2011
Date Decided: June 10, 2011
Do Not Publish
[1]After attending a GED class, McKinley and Murray paid a visit to McNabb. The trio decided to walk to the park to smoke marihuana. On the way, they stopped at the old school, which they referred to as the “[p]ink prison.” Thereafter, the group walked to the park, smoked marihuana, and returned to the school while high on the drug. McKinley and Murray testified that McNabb lit “a broken door with a lighter,” but that “Murray blew it out” and said to McNabb, “I did not want this on my record.” McKinley and Murray left the building; McNabb was the last to leave. Murray assumed McNabb was “lighting [the door] again.” Afterward, the group ran through the woods because they were “getting away from the building in case it [did] catch fire again.” Five minutes later, the trio saw smoke rising from the building, prompting Murray to call law enforcement to report the fire.
[2]McNabb does not argue that the evidence was insufficient to convict him absent McKinley’s and Murray’s testimony.
[3]During sentencing, McNabb testified, “The only reason that I went through with all of this is because I did not want to take the brunt of the guilt . . . . It was not that I was trying to duck being guilty . . . but it was the simple fact I did not want to be the only one found guilty.”
[4]The charge also included the following instructions, which McNabb does not complain of: A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, but the conduct of another for which he or she is criminally responsible, or by both. A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he or she solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Mere presence alone will not constitute one as a party to an offense. We also note that the first paragraph of McNabb’s indictment stated that he “[w]ith intent to damage or destroy a building located at 1101 E. Houston, start[ed] a fire, or cause[d] an explosion by igniting a fire on a door.” The second paragraph alleged McNabb “did then and there intentionally start[ed] a fire, or cause[d] an explosion, by igniting a fire on a door, and in so doing, the defendant recklessly damaged and destroyed a building . . . by igniting a fire in a vacant building and leaving the building.” The Texas Court of Criminal Appeals has held that a charge may apply the law of parties to a case even though the State did not allege that theory in the indictment. Marable v. State, 85 S.W.3d 287, 287–88 (Tex. Crim. App. 2002); Montoya v. State, 810 S.W.2d 160, 165 (Tex. Crim. App. 1989).
[5]McNabb did not object to the submission of this instruction during trial.
[6]Jury notes during trial are the subject of specific statutory injunction. We quote it here:
When the jury wishes to communicate with the court, it shall so notify the sheriff, who shall inform the court thereof. Any communication relative to the cause must be written, prepared by the foreman and shall be submitted to the court through the bailiff. The court shall answer any such communication in writing, and before giving such answer to the jury shall use reasonable diligence to secure the presence of the defendant and his counsel, and shall first submit the question and also submit his answer to the same to the defendant or his counsel or objections and exceptions, in the same manner as any other written instructions are submitted to such counsel, before the court gives such answer to the jury, but if he is unable to secure the presence of the defendant and his counsel, then he shall proceed to answer the same as he deems proper. The written instruction or answer to the communication shall be read in open court unless expressly waived by the defendant.
Tex. Code Crim. Proc. Ann. art. 36.27 (Vernon 2006).
[7]We also note that McNabb filed a motion to abate this appeal on April 11, 2011. He claimed that “The District Clerk’s Office has been unable to locate the jury note in question. The court reporter has copies of an unsigned, unfiled written response by the trial judge to a jury note.” By our order of April 12, 2011, McNabb’s motion to abate was denied. We directed McNabb to “contact the district attorney and determine whether the parties can, by written stipulation, deliver a copy of the missing items to the clerk for inclusion in the record. See Tex. R. App. P. 34.5(e). If the parties cannot agree, or do not have or cannot obtain a copy of those items, counsel may refile this motion to abate, which will then be considered by the Court in light of the situation as it has developed.” The Court has not been notified of any such agreement between McNabb and the district attorney, and McNabb has not filed another motion to abate. Also, McNabb’s briefing stated, “[A]ppellant must show egregious harm for relief. Further discussion of this error will be made pending a motion to abate this appeal and an order on remand on the trial court to correct the record about any jury note and any judicial response there to [sic].” The Court has received no further briefing.