Tristian Diondray Weathers v. State

Opinion issued August 12, 2010.

In The

Court of

Appeals

For The

First District

of Texas

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NO. 01-09-00093-CR

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Tristian Diondray Weathers , Appellant

V.

State of

Texas , Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Case No. 1173115

MEMORANDUM OPINION

A

jury found Tristian Diondray Weathers guilty of burglary of a habitation and

assessed a sentence of sixty years’ incarceration. On appeal, Weathers contends that the trial

court erred by not instructing the jury about the law of accomplice witness

testimony. Finding no error, we affirm.

Background

One afternoon in June 2008, Filiberto

Perez and his teenage son, also named Filiberto, looked through the front

window of their home and saw three men with black suitcases in the yard of his

neighbor, Glenda Salazar. The men, later

identified as Weathers, Sotero Chavez, and Jamarcus Smith, carried the

suitcases through Salazar’s front door into her home and then carried them out

to a brown four-door car parked in the driveway.

Perez

called 911 to report a burglary in progress and gave them the license tag

number for the parked car. The Harris County Sheriff’s Department traced the

number to Weathers at an address on Gatton Park, a street a few miles away. The Department dispatched Deputy C. Mullins

to respond to the call. Because the car

had already left the site of the burglary, Mullins first headed for the address

listed on the car registration and called for back-up to meet him there. As Mullins approached, he saw several people,

including Weathers, standing in the driveway by a brown four-door car bearing the

reported license plate number. Deputy R.

Lee had also arrived at the scene to assist Mullins.

When the people in the driveway

noticed the patrol cars, they ran into the house. The officers followed, noting that a black

suitcase like the one Perez described sat open in the living room with

electronics inside. The officers reached

the back door, which was open, and saw that some of the people fled through

broken boards in the back fence. A few

individuals, however, remained near the car and in the house. The officers detained three of the men,

including Weathers.

While other officers held Weathers

and the other suspects, Mullins left to meet with the Perezes. The Perezes agreed to accompany Mullins to

the Gatton Park house to identify the suspects.

When they arrived a little less than an hour later, Perez identified

Weathers as one of the burglars he saw at Salazar’s home, explaining that he

recognized Weathers by the white sleeveless t-shirt he was wearing. A search of Weathers’ person led to discovery

of Salazar’s identification in his pocket.

The officers recovered numerous electronics and jewelry from the Gatton

Park house and the brown car that Salazar later identified as hers. The police arrested and charged Weathers with

burglary of a habitation.

During

its case-in-chief, the State called Chavez to testify. Chavez confirmed that, earlier on the day of

the burglary, Weathers asked him if he wanted “to go hit a lick.” Chavez explained that he understood Weathers’

question as asking if Chavez wanted to break into somebody’s house and take

their belongings. Chavez said he would,

and got into Weathers’ car along with Smith.

Chavez explained that once they arrived at Salazar’s house, they went

their separate ways to collect the valuables and that Weathers kept telling

them to hurry up. Chavez brought some of

the stolen items to a pawnshop, where they were later recovered by the police

and reclaimed by Salazar, along with a pawnshop video of Chavez’s

transaction. With this evidence, the

police charged Chavez with felony theft.

Charge Error

A. Standard

of review

Weathers’

single issue on appeal concerns the absence of a jury instruction on the law of

accomplice witness testimony. We review

a claim of jury-charge error using the procedure set out in Almanza v. State , 686 S.W.2d 157 (Tex.

Crim. App. 1985). First, we determine

whether there is error in the charge. Ngo v. State , 175 S.W.3d 738, 743 (Tex.

Crim. App. 2005) (citing Middleton v.

State , 125 S.W.3d 450, 453 (Tex. Crim. App. 2003)). If error exists and the appellant objected to

the error at trial, reversal is required if the error “is calculated to injure

the rights of the defendant,” in other words, if there is “some harm.” Almanza ,

686 S.W.2d at 171 . If the error was not

objected to, it must be “fundamental” and will require reversal only if it was

so egregious and created such harm that the defendant “has not had a fair and

impartial trial.” Id. ; Saunders v. State ,

817 S.W.2d 688, 690 (Tex. Crim. App. 1991). Under both standards, we look to the actual

degree of harm 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. Id.

B. Corroboration

of informant testimony

The Texas Code of Criminal

Procedure requires that accomplice testimony be “corroborated by other evidence

tending to connect the defendant with the offense committed.” Tex.

Code Crim. Proc. Ann . art. 38.14 (Vernon 2005); Colella v. State , 915 S.W.2d 834, 838 (Tex. Crim. App. 1995). An accomplice is an individual who

participates with a defendant in the commission of a crime by doing some

affirmative act with the requisite culpable mental state that promotes the

commission of that offense. Cocke v. State , 201 S.W.3d 744, 748

(Tex. Crim. App. 2006) (citing Paredes v.

State , 129 S.W.3d 530, 536 (Tex. Crim. App. 2004)); Blake v. State , 971 S.W.2d 451 , 454–55 (Tex. Crim. App. 1998); Pena v. State , 251 S.W.3d 601, 607 (Tex.

App.—Houston [1st Dist.] 2007, pet. ref’d).

The record shows that Chavez agreed

to participate in the burglary with Weathers, went with Weathers and Smith to Salazar’s

home, and removed valuables from the home in connection with the criminal

enterprise. This evidence requires the

conclusion that Chavez was Weathers’ accomplice in the robbery. Because the State presented Chavez’s

testimony as part of the evidence used to convict Weathers, the Code of

Criminal Procedure requires that his testimony be corroborated, and failure to

instruct the jury on that requirement is error. See Herron

v. State , 86 S.W.3d 621 , 631–32 (Tex. Crim. App. 2002) (holding that

failure to instruct jury of corroboration requirement for accomplice testimony

was error); see also Simmons v. State ,

205 S.W.3d 65, 77 (Tex. App.—Fort Worth 2006, no pet.) (holding that failure to

instruct jury of corroboration requirement for confidential informant testimony

under article 38.141 was error).

C. Harm

Having determined that the trial

court erred by failing to give the instruction, we must next decide whether the

error harmed Weathers. Weathers did not request

the instruction or object to its omission, and thus failed to preserve error. Accordingly, our review focuses on whether Weathers

suffered “egregious harm” as a result of the missing instruction. See

Herron , 86 S.W.3d at 632 (citing Almanza , 686 S.W.2d at 171 ); Saunders , 817 S.W.2d at 690 ; Simmons , 205 S.W.3d at 77 .

1. The

charge

The absence of a jury instruction specifically

requiring corroboration of an accomplice’s testimony likely misled the jury

into believing that Chavez’s testimony did not need to be corroborated because

the charge did not contain an instruction requiring corroboration of the accomplice’s

testimony. This factor tends to support

a finding of harm.

2. The

evidence

Non-accomplice evidence need not

directly link the accused to the crime nor independently prove his guilt beyond

a reasonable doubt. McDuff v. State , 939 S.W.2d 607, 613 (Tex. Crim. App. 1997). The erroneous omission of an instruction that

tells the jury that testimony must be corroborated generally is harmless unless

the corroborating evidence is “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 . In reviewing the

strength of the corroborating evidence, we “examine (1) its reliability or

believability and (2) the strength of its tendency to connect the defendant to

the crime.” Id. ; see Burks v. State ,

876 S.W.2d 877, 888 (Tex. Crim. App. 1994); see

also Simmons , 205 S.W.3d at 77 (applying Herron to informant testimony).

Weathers claims that “the State’s

case against [him] relied heavily on Chavez’s testimony” and, as in the Saunders case, “rational jurors could

have assessed the State’s case as ‘significantly less persuasive’ without

Chavez’s testimony.” See

Saunders , 817 S.W.2d at 693 .

According to Weathers, without Chavez, the evidence to prove that

[Weathers] actually entered the residence of the complainant is razor

thin.”

We disagree. Independent of Chavez’s testimony, the State

presented ample evidence to support the jury’s finding that Weathers committed

the burglary. As Weathers notes, the

testimony of Perez and his son, both eyewitnesses, placed Weathers at Salazar’s

home on the day of the burglary. Perez’s

son identified Weathers as one of the individuals he saw coming out of

Salazar’s house with suitcases and putting them in the trunk of the car. Both of the officers who responded to the burglary

in progress call testified to the identification of Weathers’ car as the

vehicle used in the burglary, the discovery of Weathers, his car, and the items

stolen from Salazar’s home in Weathers’ car and at his house. Salazar also appeared and confirmed that she

owned the items recovered from Weathers’ house and car by the officers, as well

as the items recovered from the pawn shop.

In contrast, the independent

corroborating evidence in Saunders

allowed for “rather weak” inferences (1) that appellant committed arson based

on the fact that appellant had given several inexpensive items for safekeeping

to a neighbor shortly before the fire, but lost numerous valuable and irreplaceable

items in the fire, and (2) that appellant impeded the criminal investigation by

consciously disregarding orders to leave the site intact and burning down the remainder

of the damaged home before arson investigators could examine it, although the

evidence was “far more probative” that his conduct resulted from

misunderstanding, not disobedience. 817

S.W.2d at 692–93. Here, the quantum of

independent corroborating evidence directly places Weathers and his car at Salazar’s

home, places Salazar’s belongings in Weathers’ car and his home, and places Salazar’s

identification on Weathers’ person with no valid explanation for his possession

of them.

The independent testimony from the

police officers and eyewitnesses, as well as the owner of the stolen property, standing

alone, is sufficient to connect Weathers to the burglary. That evidence is not so unconvincing in fact that

it renders the State’s overall case for conviction clearly and significantly

less persuasive. See Herron , 86 S.W.3d at 632 (holding defendant was not harmed

under lower “some harm” standard “where there is no such basis in the record

for doubting the reliability of the remaining . . . items

of non-accomplice evidence”).

3. The

arguments of counsel

In

its opening argument, the State focused on the testimony of the investigating

officers and the eyewitnesses, the use of Weathers’ car in committing the

burglary and the identification of Salazar’s property in Weathers’ possession. The State made no mention of Chavez.

At

closing, defense counsel attempted to cast doubt on Perez’s identification of

Weathers by the shirt he was wearing and emphasized the defense witnesses’

testimony that Weathers was at home when the burglary occurred. The State waived its right to open but

reserved rebuttal. It initially stressed

the effect of the crime on Salazar’s peace of mind and her identification of her

property found in Weathers’ house and car, as well as the eyewitness testimony

from the Perezes identifying Weathers as a participant in the burglary. The State argued:

Is there any doubt? And if there was, then you have the one

person who got up here today with no reason to lie. The one person who got up here and didn’t lie

under oath to all 12 of you: Sotero Chavez.

He’s doing his time. He took

responsibility for his part in this. He

pled. And he’s not getting a reduction

in sentence. He’s not getting

anything. But he got up here and he told

you the truth.

He

told you whose idea it was: [Weathers].

He told you whose car they took:

His. He told you who drove both

ways: Him. Told you what this guy said: Do y’all want to

go hit a lick?

The State concluded with another reference to

Salazar’s testimony.

The

State’s waiver of the right to begin closing signals its apparent belief in the

strength of the evidence supporting conviction.

It used about a quarter of the time in its brief rebuttal discussing

Chavez’s testimony. The State’s argument

does not emphasize the actual evidence adduced by Chavez’s testimony, but the

reasons why the jury should find his testimony credible. We conclude that these arguments do not focus

the jury’s attention on Chavez’s testimony in a way that would cause the jury

to rely on it without the corroborating evidence in finding that Weathers

committed the burglary.

4. Other information in the record

The

State presented all of the evidence except for Chavez’s testimony in its case

in chief. It called Chavez only as a

rebuttal witness, after the defense adduced testimony from its witnesses that

Weathers did not participate in the burglary and was at his house when it

occurred. The testimony elicited from

Chavez directly rebutted Weathers’ defensive theory and identified Weathers as

an active participant in the burglary.

The record shows that strong and

reliable evidence connects Weathers to the burglary, and the State’s limited

purpose in presenting Chavez’s testimony lessened any impact caused by the lack

of an instruction requiring corroboration of the accomplice’s testimony. We therefore hold that Weathers was not

egregiously harmed by the lack of an instruction regarding the corroboration

requirement for Chavez’s testimony.

Conclusion

We

hold that Weathers was not egregiously harmed by the lack of a jury instruction

on the need for independent corroboration of accomplice testimony. We therefore affirm the judgment of the trial

court.

Jane

Bland

Justice

Panel

consists of Chief Justice Radack and Justices Bland and Sharp.

Do

not publish. Tex. R. App. P. 47.2(b).