ACCEPTED
06-14-00131-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
3/24/2015 10:26:34 PM
No. 06-14-00131-CR DEBBIE AUTREY
Trial Court No. 12F0117-202 CLERK
IN THE COURT OF APPEALS
FOR THE SIXTH SUPREME JUDICIAL DISTRICT FILED IN
6th COURT OF APPEALS
AT TEXARKANA, TEXAS TEXARKANA, TEXAS
3/25/2015 10:35:00 AM
Cornell McHenry, DEBBIE AUTREY
Appellant
Clerk
v.
The State of Texas, State
Appealed from the 202nd Judicial District Court
Bowie County, Texas
BRIEF FOR THE STATE
The State Does Not Request Oral Argument
Respectfully submitted:
Jerry D. Rochelle
Criminal District Attorney
Bowie County, Texas
601 Main Street
Texarkana, Texas 75501
By: Lauren N. Sutton
Assistant District Attorney
601 Main Street
Texarkana, Texas 75501
Texas Bar No. 24079421
Lauren.sutton@txkusa.org
Attorneys for the State
In The Court of Appeals
For the Sixth Supreme Judicial District
At Texarkana, Texas
Cornell McHenry, §
Appellant §
§ No. 06-14-00131-CR
v. §
§
The State of Texas, § BRIEF FOR THE STATE
State §
§
Identity of the Parties
The following is a complete list of all the parties to the trial court’s judgment
as required by the provisions of Rule 38.2(a) of the Texas Rules of Appellate
Procedure:
1. Defendant and Appellant:
Cornell McHenry
2. Attorneys for Appellant at trial:
Rick Shumaker
Chad Crowl
Public Defender’s Office
424 W. Broad Street
Texarkana, Texas 75501
3. Attorney for appellant on appeal:
Bart Craytor
Lesher & McCoy
126 W. Second St.
1
Mount Pleasant, Texas 75455
4. Attorney for the State of Texas at trial:
Mike Shepherd
Lauren N. Sutton
Assistant District Attorneys
601 Main Street
Texarkana, Texas 75501
5. Attorney for the State of Texas on Appeal:
Lauren N. Sutton
Assistant District Attorney
601 Main Street
Texarkana, Texas 75501
Lauren.sutton@txkusa.org
6. Presiding Judge at trial:
Honorable Leon F. Pesek Jr.
District Court Judge
202nd Judicial District
Bowie County, Texas
Bi-State Justice Building
100 North State Line Avenue
Texarkana, Texas 75501
2
Table of Contents
Identity of the Parties and Counsel ........................................................................ 1-2
Table of Contents ................................................................................................... 3-4
Index of Authorities ............................................................................................... 5-7
Statement of the Case................................................................................................. 8
Reply to Points of Error ............................................................................................. 9
Summary of the Argument................................................................................. 10-12
Argument............................................................................................................ 12-41
Reply to Point of Error Number One ............................................ 12-15
Sufficient evidence was presented to corroborate the co-
defendant’s testimony to sustain the Appelllant’s conviction.
Reply to Points of Error Number Two and Three ......................... 16-22
Evidence was sufficient to prove the elements of the offense
beyond a reasonable doubt.
Reply to Point of Error Number Four ........................................... 22-29
The jury was given a proper accomplice witness instruction, but
any error in submitting the issue of accomplice status to the jury
did not egregiously harm the Appellant.
Reply to Point of Error Number Five ............................................ 29-34
The trial court did not abuse its discretion in excusing a juror
due to her fear of retaliation.
Prayer for Relief ....................................................................................................... 35
Certificate of Compliance ........................................................................................ 36
3
Certificate of Service ............................................................................................... 37
4
Index of Authorities
Cases
Abdnor v. State, 871 S.W.2d 726 (Tex. Crim. App. 1984)...................................... 17
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984).....................16,17,18,23
Bailey v. State, 867 S.W.2d 42 (Tex. Crim. App. 1993) ......................................... 18
Blackman v. State, 350 S.W.3d 588 (Tex. Crim. App. 2011).................................. 11
Boones v. State, 170 S.W.3d 653 (Tex. App.—Texarkana 2005, no pet.) .............. 17
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ........................................ 9
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) ............................. 10
Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996)......................................... 9
DeBlanc v. State, 799 S.W.2d 701 (Tex.Crim.App.1990)....................................... 20
Dinkins v. State, 894 S.W.2d 330 (Tex. Crim. App. 1995) ................................16,23
Druery v. State, 225 S.W.3d 491 (Tex. Crim. App. 2007) ...................................... 19
Evans v. State, 202 S.W.2d 158 (Tex. Crim. App. 2006) ........................................ 11
Francis v. Franklin, 471 U.S. 307 (1985) ............................................................... 21
Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994) ...................................... 6,7
Hall v. State, 161 S.W.3d 142, 149 (Tex. App.—Texarkana 2005, pet. ref’d) ......... 7
Herron v. State, 86 S.W.3d 621 (Tex.Crim.App. 2002) .......................................... 21
Hutch v. State, 922 S.W.2d 116 (Tex. Crim. App. 1996) ........................................ 18
5
Jackson v. Virginia, 443 U.S. 307, 319 (1979)........................................................ 10
Jones v. State, 195 S.W.3d 279 (Tex.App.–Fort Worth 2006, no pet.) ................... 21
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) ...........................10,11
McGoldrick v. State, 682 S.W.2d 573 (Tex. Crim. App. 1985) .............................. 12
Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993)................................. 7
Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) ......................................16,23
Parker v. Randolph, 442 U.S. 62 (1979) ................................................................. 21
Rankin v. State, 974 S.W.2d 707 (Tex. Crim. App. 1996) ...................................... 26
Rankin v. State, 995 S.W.2d 210 (Tex. App.—Houston [14th Dist.] 1999) ........... 26
Rudd v. State, 921 S.W.2d 370 (Tex. App. – Texarkana 1996, pet. ref’d) .............. 17
Saunders v. State, 817 S.W.2d 688 (Tex. Crim. App. 1991).............................17, 21
State v Medina, 7 S.W.3d 633 (Tex, Crim. App. 1999) .......................................... 18
Swan v. State, 76 S.W. 464 (Tex. Crim. App. 1903) ............................................... 19
Taylor v. State, 106 S.W.3d 827 (Tex. App.—Dallas 2003, no pet.) ...................... 13
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) ........................... 10
Wright v. State, 401 S.W.3d 813 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d)12
Zollicoffer v. State, 16 Tex. Ct. App. 312 (1884) .................................................... 19
Texas Code of Criminal Procedure
Texas Code of Criminal Procedure art. 38.14 ...................................................... 6,20
6
Texas Penal Code
Texas Penal Code § 1.07(a)(39)............................................................................... 11
Texas Health & Safety Code
Texas Health & Safety Code § 481.115 .................................................................. 11
7
Statement of the Case
Appellant, Cornell McHenry, was found guilty of Possession of a Controlled
Substance. The punishment range was enhanced to a first degree due to
Appellant’s prior felony conviction and the jury assessed punishment at forty-five
(45) years in the Institutional Division of the Department of Criminal Justice, and
the judge sentenced him accordingly.
Appellant then perfected appeal to this Honorable Court. He now appeals the
verdict of the trial court on five points of error.
8
Reply to Points of Error
REPLY TO POINT OF ERROR NUMBER ONE:
Sufficient evidence was presented to corroborate the co-defendant’s testimony to
sustain the Appelllant’s conviction
REPLY TO POINTS OF ERROR NUMBER TWO AND THREE:
Evidence was sufficient to prove the elements of the offense beyond a reasonable
doubt.
REPLY TO POINT OF ERROR NUMBER FOUR:
The jury was given a proper accomplice witness instruction, but any error in
submitting the issue of accomplice status to the jury did not egregiously harm the
Appellant.
REPLY TO POINT OF ERROR NUMBER FIVE:
The jury was given a proper limiting instruction regarding extraneous offenses in
the court’s charge. Any error in not giving a contemporaneous instruction at the
time the evidence was offered was harmless.
9
Summary of the Argument
REPLY TO POINT OF ERROR NUMBER ONE:
Sufficient evidence was presented to corroborate the co-defendant’s
testimony to sustain the Appelllant’s conviction
Viewing the evidence presented at trial in a light most favorable to the jury
verdict and eliminating the accomplice’s testimony, the corroboration of the
accomplice testimony was sufficient. While the nonaccomplice evidence may not
establish guilt beyond a reasonable doubt, or not prove all the elements of the
alleged offense by itself, it does tend to connect the defendant with the commission
of the offense as required. Therefore, the corroboration of the accomplice
testimony was sufficient.
REPLY TO POINTS OF ERROR NUMBER TWO AND THREE:
Evidence was sufficient to prove the elements of the offense beyond a
reasonable doubt.
Viewing the evidence presented at trial in the light most favorable to the
jury’s verdict, this Court can determine a rational jury could have found the
essential elements of the offense beyond a reasonable doubt.
10
REPLY TO POINT OF ERROR NUMBER FOUR:
The jury was given a proper accomplice witness instruction, but any
error in submitting the issue of accomplice status to the jury did not
egregiously harm the Appellant.
The jury instructions submitted DeQueener Mitchell’s status as an
accomplice to the jury and required them to find her testimony corroborated by
other evidence. Even though the trial court submitted the issue to the jury, no
rational jury would have found that she was not an accomplice to the crime.
Submitting the accomplice witness issue to the jury did not result in egregious
harm to Appellant. Taking into account the charge itself, the state of the evidence
including contested issues and the weight of the probative evidence, arguments of
counsel, and any other relevant information revealed by the record of the trial as a
whole, the Appellant did not suffer egregious harm.
REPLY TO POINT OF ERROR NUMBER FIVE:
The jury was given a proper limiting instruction regarding extraneous
offenses in the court’s charge. Any error in not giving a
contemporaneous instruction at the time the evidence was offered was
harmless.
In his fifth point of error, the Appellant contends the trial court erred when it
did not give a limiting instruction at the admission of extraneous offenses and
failed to instruct the jury to disregard the evidence as a matter of law. However, the
trial court submitted a proper limiting instruction in the jury charge. Because the
11
Appellant has failed to demonstrate harm in the failure to instruct the jury at the
time the evidence was admitted, any error in the timing of the court's instruction to
the jury did not affect his substantial rights.
12
Argument
Reply to Point of Error One
Sufficient evidence was presented to corroborate the co-defendant’s
testimony to sustain the Appelllant’s conviction
In point of error number one, the Appellant argues that the trial court erred
in denying his motion for a directed verdict because the co-defendant’s testimony
was not adequately corroborated. However, viewing the evidence presented at trial
in a light most favorable to the jury verdict and eliminating the accomplice’s
testimony, the corroboration of the accomplice testimony was sufficient.
Argument and Authorities
A. Standard of Review
Under the accomplice witness rule, one cannot be convicted on the
testimony of an accomplice unless that testimony is corroborated by other evidence
tending to connect the defendant with the offense committed.1 To determine the
sufficiency of corroboration, the reviewing court must view the corroborating
evidence in the light most favorable to the jury’s verdict.2 The test for weighing the
sufficiency of corroborating evidence is to eliminate from consideration the
accomplice’s testimony, and then examine the remaining testimony and evidence
to determine if there is evidence that tends to connect the defendant with the
1
Texas Code Crim. Proc. art. 38.14.
2
Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994).
13
commission of the offense.3 The nonaccomplice evidence does not have to directly
link the accused to the crime, does not have to establish guilt beyond a reasonable
doubt, and need not prove all the elements of the alleged offense.4
B. Application of Law to Facts
Viewing the evidence presented at trial in a light most favorable to the jury
verdict and eliminating the accomplice’s testimony, the corroboration of the
accomplice testimony was sufficient.
During surveillance conducted in the months leading up to the arrest,
officers determined that Cornell McHenry resided at the home at 516 Waterman.
(R.R. Vol. 3, p. 37). Believing there was illegal drug activity at the house, officers
secured a no-knock search warrant for the house at 516 Waterman based on the
probable cause they developed as a result of the surveillance. (R.R. Vol. 3, p. 37).
Officers determined Cornell McHenry was a resident 516 Waterman Street.
(R.R. Vol. 3, p. 37). Officer Mark Shermer testified that a confidential informant
was used to conduct a controlled buy and the information acquired from the
informant helped establish probable cause for a search warrant of the residence.
(R.R. Vol. 3, p. 61-62)
3
Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993); Hall v. State, 161 S.W.3d 142,
149 (Tex. App.—Texarkana 2005, pet. ref’d).
4
Gill, 873 S.W.2d at 48; Munoz, 853 S.W.2d at 559.
14
Officer Jones testified that after making entry into the residence, the officers
found suspected marijuana, methamphetamine, and prescription medications in the
house. (R.R. Vol. 3, p. 45, 72, 86). A set of small scales, consistently used by
people to weigh out quantities of drugs, were also found. (R.R. Vol. 3, p. 45, 72).
There were also plastic baggies commonly used in the packaging of illegal drugs
found in the residence. (R.R. Vol. 3, p. 49). In a bedroom there was a flashlight
found and inside was hidden the methamphetamine. (R.R. Vol. 3, p. 51). Officer
Thomson testified he observed Mr. McHenry walking from the bedroom. (R.R.
Vol. 3, p. 87). The officers confirmed that Mr. McHenry lived at the residence by
finding mail with his name and the 516 Waterman address. (R.R. Vol. 3, p. 52).
Both Cornell McHenry and DeQueener Mitchell were the only two present at the
location when the search warrant was executed. (R.R. Vol. 3, p. 69). Mr. McHenry
was found to have a large amount of cash on him- $1,395.00—however Mr.
McHenry was not employed at the time. (R.R. Vol. 3, p. 70).
C. Conclusion
While the nonaccomplice evidence may not establish guilt beyond a
reasonable doubt, or not prove all the elements of the alleged offense by itself, it
does tend to connect the defendant with the commission of the offense as required.
Therefore, the corroboration of the accomplice testimony was sufficient.
For these reasons, Appellant’s first point of error should be overruled.
15
Reply to Points of Error Two and Three
Evidence was sufficient to prove the elements of the offense beyond a
reasonable doubt.
In his second point of error, Appellant complains the evidence is factually
insufficient to support his conviction. In the third point of error, Appellant
contends the evidence is legally insufficient. However, viewing the evidence
presented at trial in the light most favorable to the jury’s verdict, this Court can
determine a rational jury could have found the essential elements of the offense
beyond a reasonable doubt. The State will reply jointly to points of error two and
three.
Argument and Authorities
A. Standard of Review
Appellant asserts in his second point of error that there is factually
insufficient evidence to support his conviction. In Brooks v. State5, a plurality of
the Texas Court of Criminal appeals abolished the factual sufficiency review it had
previously announced in Clewis v. State6. In his third point of error, the Appellant
challenges the legal sufficiency of the evidence. This Court should review his point
of error for its legal sufficiency to sustain the conviction. In reviewing the
5
323 S.W.3d 893, 894-96 (Tex. Crim. App. 2010) (4-1-4 decision).
6
922 S.W.2d 126 (Tex. Crim. App. 1996).
16
sufficiency of the evidence, this Court should apply the standard set out in Jackson
v. Virginia, 443 U.S. 307 (1979). This standard requires a reviewing court to
examine all the evidence in the light most favorable to the verdict to determine
whether a rational trier of fact could have found the essential elements of the
offense beyond a reasonable doubt.7 This standard of review applies to cases
involving both direct and circumstantial evidence.8 The reviewing court should
consider everything presented at trial but should not substitute their own judgment
regarding the weight and credibility of the evidence for that of the fact finder.9
Further, an appellate court presumes the fact finder resolved conflicting inferences
in favor of the verdict, and defers to that determination.10 The question is not
whether the appellate court itself believes the defendant is guilty beyond a
reasonable doubt, but whether viewing the evidence in the light most favorable to
the verdict, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.11
Legal sufficiency of the evidence is measured by the elements of the offense
as defined by a hypothetically correct jury charge.12 The hypothetically correct jury
charge sets out the law, is authorized by the indictment, does not unnecessarily
7
443 U.S. 307, 319 (1979).
8
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
9
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
10
Clayton, 235 S.W.3d at 778.
11
Jackson, 443 U.S. at 318-19.
12
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
17
increase the State‘s burden of proof or unnecessarily restrict the State‘s theories of
liability, and adequately describes the particular offense for which the defendant
was tried.13 In this case, Appellant committed possession of a controlled substance
if he intentionally possessed a controlled substance.
B. Application of Law to Facts
To prevail in a case of possession of a controlled substance under Texas
Health & Safety Code Section 481.115, the state must prove an individual
knowingly or intentionally possessed a controlled substance. To prove possession,
the state must prove that Appellant exercised care, custody, control, or
management over the controlled substance and that he knew the matter possessed
was contraband.14 Mere presence at the location where drugs are found is
insufficient by itself to establish possession.15 However, presence or proximity to
drugs, combined with other direct or circumstantial evidence, may be sufficient to
establish care, custody, control or management, if it amounts to more than a strong
suspicion or probability.16
Texas courts have recognized the following as affirmative links which can
be used to establish a defendant’s possession of contraband:
13
Id.
14
See Blackman v. State, 350 S.W.3d 588, 596 (Tex. Crim. App. 2011); see also Tex. Penal
Code § 1.07(a)(39).
15
Evans v. State, 202 S.W.2d 158, 161 (Tex. Crim. App. 2006).
16
Id.
18
(1) The accused’s presence when a search is conducted, (1) whether the
contraband was in plain view; (3) the accused’s proximity to and the
accessibility of the narcotic; (4) whether the accused was under the
influence of narcotics when arrested; (5) whether the accused possessed
other contraband or narcotics when arrested; (6) whether the accused
made incriminating statements when arrested; (7) whether the accused
attempted to flee; (8) whether the accused made furtive gestures; (90
whether there was an odor of contraband; (10) whether other contraband
or drug paraphernalia were present; (11) whether the accused owned or
had right to possess the place where the drugs were found; (12) whether
the place the drugs were found was enclosed; (13) whether the accused
was found with a large amount of cash; and (14) whether the conduct of
the accused indicated a consciousness of guilt.17
In addition, it is well established that a person may jointly possess
contraband with another and possession does not need to be exclusive.18
The testimony at trial established that the Appellant (1) was present when
the search was conducted, (2) was in close proximity and had access to the
narcotic, (3) there was other contraband found at the home during the search, (4)
the Appellant owned or had the right to possess the place where the drugs were
found; and (5) the Appellant was found with a large amount of cash on his person.
There were at least these five affirmative links which establish the Appellant
possessed the methamphetamine. In addition, Mrs. Mitchell testified the
methamphetamine belonged to the Appellant, that he sold the drugs, and that she
had witnessed him put the drugs into the flashlight. The number of links present is
17
Wright v. State, 401 S.W.3d 813, 818-19 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d)
18
McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985).
19
not as important as the degree to which they tend to link the defendant to the
controlled substance.19
At trial, officers of the Texarkana Texas Police Department testified that
they executed a search warrant at 516 Waterman Street. (R.R. Vol. 3, p. 41, 59-60,
67, 85). The search warrant was based on months of surveillance done at the
location. Officers stopped individuals leaving the residence, and they were found
to have drugs in their possession. (R.R. Vol. 3, p. 37, 84). Officers determined
Cornell McHenry was a resident 516 Waterman Street. (R.R. Vol. 3, p. 37). Officer
Mark Shermer testified that a confidential informant was used to conduct a
controlled buy and the information acquired from the informant helped establish
probable cause for a search warrant of the residence. (R.R. Vol. 3, p. 61-62)
Officer Jones testified that after making entry into the residence, the officers
found suspected marijuana, methamphetamine, and prescription medications in the
house. (R.R. Vol. 3, p. 45, 72, 86). A set of small scales, consistently used by
people to weigh out quantities of drugs, were also found. (R.R. Vol. 3, p. 45, 72).
There were also plastic baggies commonly used in the packaging of illegal drugs
found in the residence. (R.R. Vol. 3, p. 49). In a bedroom there was a flashlight
found and inside was hidden the methamphetamine. (R.R. Vol. 3, p. 51). The
bedroom was the room Mr. McHenry and Ms. Mitchell were seen coming from.
19
Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.—Dallas 2003, no pet.).
20
(R.R. Vol. 3, p. 73). Officer Thomson testified he observed Mr. McHenry walking
from the bedroom. (R.R. Vol. 3, p. 87).The officers confirmed that Mr. McHenry
lived at the residence by finding mail with his name and the 516 Waterman
address. (R.R. Vol. 3, p. 52). Both Cornell McHenry and DeQueener Mitchell were
the only two present at the location when the search warrant was executed. (R.R.
Vol. 3, p. 69). Mr. McHenry was found to have a large amount of cash on him-
$1,395.00—however Mr. McHenry was not employed at the time. (R.R. Vol. 3, p.
70, 95).
DeQueener Mitchell, the co-defendant, testified that at the time the home
was searched, she had been in a relationship with McHenry for about three years.
(R.R. Vol. 3, p. 91). She stated that the prescription medication and marijuana
found in the home was hers but that the methamphetamine found in the flashlight
was not. (R.R. Vol. 93-94). Mitchell testified she had personally seen McHenry put
the methamphetamine inside of the flashlight and it was something he commonly
did. (R.R. Vol. 3, p. 94). Both Cornell and Mitchell were charged with possession
of the marijuana, prescription medication, and methamphetamine. (R.R. Vol. 3, p.
96). Mitchell pled guilty to the charges and was placed on probation. (R.R. Vol. 3,
p. 96).
The methamphetamine was found in the house where McHenry was living.
Mitchell testified she had seen him hid the methamphetamine in the flashlight.
21
These links have a strong tendency to connect the Appellant to the contraband
found in the home.
C. Conclusion
The State produced sufficient evidence that would allow a rational juror to
conclude that the Appellant knowingly or intentionally exercised care, custody,
control, or management over the drugs. Therefore, legally sufficient evidence
exists to support Appellant’s conviction.
For the above-mentioned reasons, Appellant’s second and third points of
error should be overruled.
Reply to Point of Error Four
The jury was given a proper accomplice witness instruction, but any
error in submitting the issue of accomplice status to the jury did not
egregiously harm the Appellant.
In his fourth point of error, Appellant argues the trial court erred in failing to
instruct the jury that DeQueener Mitchell was an accomplice as a matter of law.
Appellant asserts he suffered egregious harm because the jury was not instructed
that DeQueener Mitchell was an accomplice as a matter of law. However, the jury
instructions submitted Mitchell’s status as an accomplice to the jury and required
them to find her testimony corroborated by other evidence. There was no evidence
22
presented at trial that DeQueener was not an accomplice. Even though the trial
court submitted the issue to the jury, no rational jury would have found that she
was not an accomplice to the crime. The non-accomplice evidence is reliable and
connected Appellant to possession of the methamphetamine independent of
Mitchell’s testimony. Submitting the accomplice witness issue to the jury did not
result in egregious harm to Appellant. Taking into account the charge itself, the
state of the evidence including contested issues and the weight of the probative
evidence, arguments of counsel, and any other relevant information revealed by the
record of the trial as a whole, the Appellant did not suffer egregious harm.
Argument and Authorities
A. Standard of Review
Appellate review of a purported error in the jury charge involves a two-step
process. 20 First, the reviewing court must determine whether the jury instruction is
erroneous.21 Second, if error occurred, then an appellate court must analyze that
error for harm.22 In examining the charge for possible error, reviewing courts
“must examine the charge as a whole instead of a series of isolated and unrelated
statements.”23
20
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g), overruled on
other grounds by Rodriguez v. State, 758 S.W.2d 787, 788 (Tex. Crim. App. 1988).
21
Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).
22
Id. at 744.
23
Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995).
23
When jury instruction errors occur, review of the charge is under the
Almanza standard.24 An erroneous jury charge does not result in automatic
reversal of the conviction or punishment.25 Instead, sufficient harm must have
resulted from the error to require reversal.26
The level of harm an appellant must demonstrate as having resulted from the
erroneous jury instruction depends on whether the appellant properly objected to
the error.27 When a proper objection is made at trial, reversal is required if the error
is “calculated to injure the rights of defendant”—the appellant need only
demonstrate “some harm” on appeal.28 In the case of unpreserved error, reversal is
required only when “the error is so egregious and created such harm that he ‘has
not had a fair and impartial trial’—in short ‘egregious harm.’”29 “Egregious harm”
results from errors affecting the very basis of the case or that deprive the defendant
of a valuable right, vitally affect a defensive theory, or make the case for
conviction or punishment clearly and significantly more persuasive.30
In either event, when conducting a harm analysis the reviewing court may
consider the following four factors: 1) the charge itself; 2) the state of the evidence
24
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g).
25
Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1984).
26
Id. at 731-32; Almanza, 686 S.W.2d at 171.
27
Abdnor, 871 S.W.2d at 732.
28
Id.; see also Almanza, 686 S.W.2d at 171.
29
Almanza, 686 S.W.2d at 171; see Rudd v. State, 921 S.W.2d 370, 373 (Tex. App.—Texarkana
1996, pet. ref’d).
30
Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991); Boones v. State, 170 S.W.3d
653, 660 (Tex. App.—Texarkana 2005, no pet.).
24
including contested issues and the weight of the probative evidence; 3) arguments
of counsel; and, 4) any other relevant information revealed by the record of the
trial as a whole.31
Since error was not preserved, reversal is not required unless “the error is so
egregious and created such harm that [the defendant] ‘has not had a fair and
impartial trial’ – in short ‘egregious harm.’”32 “Errors which result in egregious
harm are those which affect ‘the very basis of the case,’ deprive the defendant of a
‘valuable right,’ or ‘vitally affect a defensive theory’.” 33 Egregious harm is a
difficult standard to prove and such a determination must be done on a case-by-
case basis.34
If there is substantial non-accomplice evidence linking the defendant to the
offense, any error is harmless.35 Substantial non-accomplice evidence linked
Appellant to the offense. That evidence has been detailed in this brief previously in
the State’s response to Appellant’s points of error one, two, and three. Therefore,
the error in failing to instruct the jury that Mitchell was an accomplice as a matter
of law did not egregiously harm the Appellant.
31
Bailey v. State, 867 S.W.2d 42, 43 (Tex. Crim. App. 1993) (citing Almanza).
32
Almanza, 686 S.W.2d at 171; see Rudd v. State, 921 S.W.2d 370, 373 (Tex. App. – Texarkana
1996, pet. ref’d).
33
Hutch v. State, 922 S.W.2d 116, 171 (Tex. Crim. App. 1996)(quoting Almanza)
34
Id.
35
State v Medina, 7 S.W.3d 633, 642 (Tex, Crim. App. 1999)
25
B. Application of Law to Facts
Case law indicates that jury submission of a witness’s status has long been
preferred by the appellate courts.36 However, later decisions reflect approval of
sometimes taking the issue from the jury where the evidence unquestionably shows
that a witness is an accomplice.37 The trial court should instruct the jury that a state
witness is an accomplice as a matter of law “when the witness is charged with the
same offense as the defendant.”38 The proposed charge stated the issue as giving
the determination on DeQueener’s witness status to the jury. (C.R. p. 62).
After review of the charge, during the charge conference, the following
statements were made:
THE COURT: We’re outside the presence of the jury. We’ve had an
opportunity to review the proposed charge. Any objections?
DEFENSE: Yes, sir. Judge, we’ve had an opportunity to review it.
There were a couple of changes that we requested that were made and
included, so we have no objections at this time.
(R.R. Vol. 3, p. 154).
36
See Zollicoffer v. State, 16 Tex. Ct. App. 312 (1884)(“It has been the practice in such cases to
submit this issue to the jury, and, believing the practice to be a safe and proper one, and in
harmony with the spirit of our system of procedure, we are not disposed to change it.”).
37
See Swan v. State, 76 S.W. 464, 465 (Tex. Crim. App. 1903).
38
See Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007).
26
Because this alleged jury charge error was not timely objected to—in fact
was agreed to—the higher standard of harm must be established. The Appellant
must demonstrate that the error was so egregious and created such harm that it
deprived him of a fair and impartial trial.
Although the trial court did not instruct the jury that Mitchell was an
accomplice as a matter of law, it did instruct the jury on the law of accomplice
testimony, reciting the language of Texas Code of Criminal Procedure Article
38.14 verbatim.39 Mitchell testified that she had been indicted for her part in the
crime. Furthermore, both the State and Appellant’s trial counsel repeatedly stated
that Mitchell was an accomplice or co-defendant during closing arguments. (R.R.
Vol. 3, p. 157-158, 160-161). Based on this record, any reasonable juror would
have concluded that Mitchell was an accomplice and applied the trial court's
instruction on accomplice testimony accordingly.40 The evidence at trial that
Mitchell was also in possession of the narcotics was unrefuted and unquestioned.
That, along with the State’s affirmation to the jurors in final argument that Mitchell
was a co-defendant, confirm that only an unreasonable jury would find that
Mitchell was not an accomplice and consequently would base Appellant’s
39
See Tex. Code Crim. Proc. art. 38.14.
40
See DeBlanc v. State, 799 S.W.2d 701, 710–11 (Tex.Crim.App.1990) (“Given the unrefuted,
unquestioned evidence that [the witness] was an active participant in the murder ... only an
unreasonable jury would find that the State's witness was not an accomplice...”).
27
conviction solely upon her testimony. Courts will “presume that jurors, conscious
of the gravity of their tasks, attend closely the particular language of the trial
court's instructions in criminal cases and strive to understand, make sense of, and
follow the instructions given them.”41
C. Harm Analysis
Under the egregious harm standard, the omission of an accomplice witness
instruction is generally harmless unless the corroborating (non-accomplice)
evidence is “so unconvincing in fact as to render the State's overall case for
conviction clearly and significantly less persuasive.”42 This analysis requires the
examination of the strength of non-accomplice evidence by assessing its reliability
or believability and the degree to which it connects the defendant to the crime. 43
As discussed previously in reply to point of error one, two, and three in this
brief, the accomplice witness testimony was sufficiently corroborated. The non-
accomplice evidence is reliable and connected Appellant to possession of the
methamphetamine independent of Mitchell’s testimony. Submitting the accomplice
witness issue to the jury did not result in egregious harm to Appellant.
41
Francis v. Franklin, 471 U.S. 307, 324 n. 9 (1985); See also Parker v. Randolph, 442 U.S. 62,
75 n. 7 (1979) (“The rule—indeed, the premise upon which the system of jury trials function
under the American judicial system—is that juries can be trusted to follow the trial court's
instructions.”).
42
Herron v. State, 86 S.W.3d 621, 632 (Tex.Crim.App. 2002), quoting Saunders v. State, 817
S.W.2d 688, 692 (Tex.Crim.App. 1991); Jones v. State, 195 S.W.3d 279, 290 (Tex.App.–Fort
Worth 2006, no pet.).
43
Herron, 86 S.W.3d at 632.
28
Based on the foregoing, this Court can conclude that any error in failing to
instruct the jury that Mitchell was an accomplice as a matter of law was not
egregiously harmful.
D. Conclusion
The issue of whether Mitchell was an accomplice witness was submitted to
the jury. However, there the evidence at trial was unrefuted that Mitchell was an
accomplice. Therefore, following the jury instructions, any rational juror would
require her testimony to be corroborated in order to convict. Submitting the
accomplice witness issue to the jury did not result in egregious harm to Appellant.
For the above-mentioned reasons, Appellant’s fourth point of error should be
overruled.
Reply to Point of Error Five
The jury was given a proper limiting instruction regarding extraneous
offenses in the court’s charge. Any error in not giving a
contemporaneous instruction at the time the evidence was offered was
harmless.
In his fifth point of error, the Appellant contends the trial court erred when it
did not give a limiting instruction at the admission of extraneous offenses and
failed to instruct the jury to disregard the evidence as a matter of law. However, the
trial court submitted a proper limiting instruction in the jury charge. (C.R. p. 63-
29
64). When the jury was deliberating, they had been instructed not to consider the
evidence for purposes of character conformity. Because the Appellant has failed to
demonstrate harm in the failure to instruct the jury at the time the evidence was
admitted, any error in the timing of the court's instruction to the jury did not affect
his substantial rights.
Argument and Authorities
A. Standard of Review
Appellant frames this issue as of one jury instruction error. Appellate review of
44
a purported error in the jury charge involves a two-step process. First, the
reviewing court must determine whether the jury instruction is erroneous.45
Second, if error occurred, then an appellate court must analyze that error for
harm.46 In examining the charge for possible error, reviewing courts “must
examine the charge as a whole instead of a series of isolated and unrelated
statements.”47 However, a review of the jury charge shows it does include a proper
limiting instruction regarding extraneous offenses.
Because there was no error in the jury charge as it relates to the limiting
instruction, this type of alleged error is better addressed as a failure of the trial
44
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g), overruled on
other grounds by Rodriguez v. State, 758 S.W.2d 787, 788 (Tex. Crim. App. 1988).
45
Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).
46
Id. at 744.
47
Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995).
30
court to give a limiting instruction contemporaneous with the admission of
extraneous evidence.
Texas Rules of Evidence 105 provides that “the court, upon request, shall
restrict the evidence to its proper scope and instruct the jury accordingly.” During
the trial, Appellant requested that the jury be instructed on the purpose for which
they could consider the extraneous offense testimony. The trial court did not give
the instruction at the time the evidence was admitted, but gave the instruction in its
charge to the jury. This Court must next examine whether any error in the failure
of the trial court to give a limiting instruction contemporaneously with the
admission of the extraneous offense was harmless.
B. Harm Analysis
The State sought to introduce evidence through witness Mike Jones that prior to
the search performed at Appellant’s house, surveillance had been set up at the
residence. (R.R. Vol. 3, p. 17). The testimony was that individuals were observed
going to the residence, one or more of the occupants would go up to the house,
then leave a short time later. (R.R. Vol. 3, p. 18). On a couple of occasions, the
cars were stopped leaving and the occupants of the vehicle had methamphetamine
in their possession. (R.R. Vol. 3, p. 18). Officer Jones testified he had no personal
knowledge from the individuals stopped that went into the residence that they
purchased drugs specifically from the Appellant. (R.R. Vol. 3, p. 19). The
31
information gathered from the surveillance gave the officers probably cause and
reasonable suspicion to believe drug activity was going on at the residence and
gave them a reason to request a search warrant for the house to see if drugs were in
the residence. (R.R. Vol. 3, p. 19).
Appellant objected to the evidence at trial as being inadmissible extraneous
offense evidence. (R.R. Vol. 3, p. 20-21). The State asserted the surveillance
information was being offered to show how the officers developed probable cause
to request a search warrant and that there would be no testimony that Appellant
was seen dealing drugs at the house. (R.R. Vol. 3, p. 21). The trial court found the
evidence was relevant to show the circumstances leading up to the search warrant
and further found that the probative value of the evidence outweighed any
prejudicial effect. (R.R. Vol. 3, p. 22-23). The court properly limited the testimony
and prevented the introduction of any evidence the Appellant was dealing drugs
out of the house. (R.R. Vol. 3, p. 23).
Later, over the Defendant’s objections, DeQueener Mitchell was allowed to
testify that she had personally seen the Appellant sell methamphetamine in the
past. (R.R. Vol. 3, p. 94).
During the trial, Appellant objected to the extraneous offense and its relevance.
At this point he did not request that the jury be instructed on the purpose for which
they could consider the extraneous offense testimony. (R.R. Vol. 3, 94). The trial
32
court did not give the instruction at the time the evidence was admitted, but gave
the instruction in its charge to the jury.
Appellant relies on the Court of Criminal Appeal’s decision in Rankin v. State48
for the proposition that it is reversible error for the trial court to give a limiting
instruction for the first time during the jury charge. However, on remand, the
Houston Court of Appeals held in Rankin, 995 S.W.2d 210 that the error in giving
limiting instruction in the jury charge, instead of at the time the extraneous offense
testimony was admitted, did not affect a substantial right, and thus was not
reversible error, where there was no evidence to show that jury formed an opinion
prior to the time it began its deliberation.49
In the instant case, the trial court submitted a proper limiting instruction in the
jury charge. (C.R. p. 63-64). When the jury was deliberating, they had been
instructed not to consider the evidence for purposes of character conformity. There
is no evidence to show the jury formed an opinion prior to the time it began its
deliberation. Additionally, the indictment that was read to the jury was clear which
bad act was the basis for the criminal charge against the Appellant.
Because the Appellant has failed to demonstrate harm in the failure to instruct
the jury at the time the evidence was admitted, any error in the timing of the court's
instruction to the jury did not affect his substantial rights.
48
Rankin v. State, 974 S.W.2d 707 (Tex. Crim. App. 1996).
49
Rankin v. State, 995 S.W.2d 210, 215 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d).
33
C. Conclusion
The trial court submitted a proper limiting instruction in the jury charge,
even though one was not given to the jury at the time the evidence was introduced.
The Appellant did not suffer harm, therefore any error in the timing of when the
instruction was given did not affect his substantial rights.
For the above-mentioned reasons, Appellant’s fifth point of error should be
overruled.
34
Prayer for Relief
WHEREFORE, PREMISES CONSIDERED, there being legal and
competent evidence sufficient to justify the conviction and punishment assessed in
this case and no reversible error appearing in the record of the trial of the case, the
State of Texas respectfully prays that this Honorable Court affirm the judgment
and sentence of the trial court below.
Respectfully Submitted:
Jerry D. Rochelle
Criminal District Attorney
Bowie County, Texas
601 Main Street
Texarkana, Texas 75501
Phone: (903) 735-4800
Fax: (903) 735-4819
_/s/ Lauren N. Sutton___________
By: Lauren N. Sutton
Assistant District Attorney
601 Main Street
Texarkana, Texas 75501
Phone: (903) 735-4800
Fax: (903) 735-4819
Lauren.sutton@txkusa.org
Attorneys for the State
35
Certificate of Compliance
I, Lauren N. Sutton, certify that, pursuant to Rule 9 of the Texas Rules of
Appellate Procedure, Appellee’s Brief contains 5,142 words, exclusive of the
caption, identity of parties and counsel, statement regarding oral argument, table of
contents, index of authorities, statement of the case, statement of issues presented,
statement of jurisdiction, statement of procedural history, signature, proof of
service, certification, certificate of compliance, and appendix.
/s/ Lauren N. Sutton
Lauren N. Sutton
36
Certificate of Service
I, Lauren N. Sutton, certify that I have served a true and correct copy of the
foregoing Brief for the State upon Mr. Bart Craytor, Attorney for Appellant, on
this the 24th day of March 2015.
__/s/ Lauren N. Sutton___________
Lauren N. Sutton
37