Opinion by Justice Moseley.
Stanton Wayne Yates was charged with five counts of engaging in organized criminal activity (a first degree felony) with the underlying offense of burglary of a habitation (a second degree felony).
We find that no accomplice-witness instruction was required and that there was sufficient evidence to sustain Yates' conviction. However, we modify the judgment to delete the assessment of attorney fees. Accordingly, we affirm the conviction, as modified.
Yates' criminal activities screeched to a halt on June 6, 2015, when a Collin County Sheriff's Deputy detained a vehicle in an investigation of a reported residential burglary that had been committed in Farmersville, Texas.
The State introduced evidence from five burglaries.
The first Hopkins County burglary alleged to have been committed by Yates occurred in 2014 on New Years' Eve at the home of Brenda Campbell.
Sandra Vickers, a neighbor of the Campbells, had first noticed a red pickup truck in the Campbells' driveway and later saw an older model navy blue SUV in front of the Campbell house, observing it to leave and then return at a time she estimated to be in the early afternoon.
The second reported burglary of a residence came to light on February 5, 2015, at the home of Timothy Henderson.
In relation to the Henderson home burglary, the State introduced business records from Greenville Gold & Silver, of Greenville, Texas, and the affidavit of its proprietor, Archie Anderson. The records reflected twenty-one transactions between January 26, 2015, and May 29, 2015, with Stanton W. Yates or Perry Yates as the sellers. The records also showed that on January 30, 2015, "Yates, Stanton W." had sold to Greenville Gold & Silver a ring described as "Timbo 2002 Ring."
The third home burglary mentioned by the State was on February 7, 2015, at the home of the John Gammill family.
During Gammill's testimony, the State offered, over no objection, an affidavit in support of business records from Hunt County Guns and Ammo wherein it was indicated that the unique Uberti rifle and the Springfield Armory XDM 9 mm pistol having serial numbers matching those belonging to Gammill had been sold by Yates to Hunt County Guns and Ammo.
The next burglary mentioned occurred on April 28, 2015, at the Kinworthy home.
The fifth burglary described during the State's case occurred on June 3, 2015, at the home of Glenn Hahn.
A.J. Jumper, an investigator assigned to the Criminal Investigations Unit of the Collin County Sheriff's Office, executed a warrant authorizing the search of a tan Chevrolet Blazer in which Perry and Yates had been riding at the time of their arrest. This search turned up (among other things) several pieces of jewelry in an envelope and a case, some inscribed with names other than Yates' or Perry's; an Equate aspirin bottle containing Tramadol hydrochloride (a prescription pain killer), a prescription bottle with Yates' name on it containing hydrocodeine; a .380 Smith and Wesson Bodyguard pistol, serial number EAL3345, with a loaded magazine, and its black case; and items that could be used to forcefully burglarize locked premises, such as a Stanley precision claw bar
Perry admitted that Yates had once had a class ring with an inscription that read "Timbo" and that he saw Yates take the ring to a Greenville, Texas, jewelry shop owned by Anderson. In explaining Anderson's role, Perry explained that in the beginning, Yates did not trust Anderson enough to sell stolen class rings containing inscriptions on them, but that eventually, he began to sell easily identifiable jewelry to Anderson. When the State asked Perry if Anderson could remove the inscriptions in order to make rings "untraceable," Perry begrudgingly answered that he could.
When the State showed Perry records from Hunt County Guns & Ammo, he agreed that he was the person who had taken the Armory XDM 9mm pistol to the store and sold it. He also admitted that he never owned the gun and that it had been stolen from someone's home. Perry acknowledged that B6UP Pawn & Gun Shop records showed Yates' name as being the person who sold a Nikon camera to the shop. Perry testified that he was not present when Yates signed any of the documents associated with the sale of the stolen items.
Additionally, Perry acknowledged that he and Yates were known to use prescription-strength painkillers, including Tramadol. He stated that Yates had a prescription for painkillers,
Perry also testified that their relationship with Anderson was informal and that they had never directly told him of the source of the jewelry they sold to him. However, Perry testified that he told the investigators that he believed Anderson knew the jewelry was stolen, but stated, "I can't speak for him. I mean, it's obvious."
Anderson testified that he had been in the business of buying and selling gold since the 1980s and that he had purchased jewelry from Yates about twenty times over the two years previous to Yates' arrest. He also said that he had paid the brothers over $20,000.00 in purchasing
When asked if he was "suspicious" of the brothers' activities over the four-month period, he responded that he had "zero" suspicion. Anderson maintained that Yates told him he and Perry "had a route of sellers that they were buying [jewelry] from."
In addition, Anderson conceded that he had purchased a firearm from Yates (a Ruger .357), but he explained that the purchase took place outside of the shop and was for his own personal use. Anderson said that he had failed to inform the policemen that he had also purchased a Sig Sauer Mosquito pistol from Yates (a gun that had been stolen by the brothers). Anderson maintained that he was just "innocent and trusting" and denied ever having told Yates that he knew of a process in which he could remove the inscriptions from class rings. Anderson admitted that he had an agreement with Yates and Perry that they would "take over" his business, that he would train them, and that the three of them would share the profits from the business.
A. The Accomplice-Witness Jury Instruction
Yates contends that he was entitled to an accomplice-witness jury instruction as to Anderson and that the trial court erred in failing to include the instruction in its jury charge. The State takes the position that although Anderson was, indeed, a member of the combination who collaborated in carrying out criminal activities, "he was not legally culpable of the object offenses of [b]urglary of a [h]abitation either directly or under the law of the parties." We concur with the State's assessment of this issue.
1. Standard of Review and Applicable Law
Our review of alleged jury charge error involves a two-step process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994); see Sakil v. State, 287 S.W.3d 23, 25-26 (Tex. Crim. App. 2009); Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Initially, we determine whether an error occurred and then "determine whether sufficient harm resulted from the error to require reversal." Abdnor, 871 S.W.2d at 731-32; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g); see also Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). The degree of harm required for reversal depends on whether the appellant preserved error. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986). When no proper objection was made, as in this case, the error requires reversal only in the event it was so egregious and created such harm that the accused has not had a fair and impartial trial. Almanza, 686 S.W.2d at 171 (op. on reh'g).
Article 38.15 of the Texas Code of Criminal Procedure states, "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 (West 2005); Druery v. State, 225 S.W.3d 491,
A witness is not considered an accomplice merely because he knew of the offense and did not disclose it, or even if he concealed it. Kunkle, 771 S.W.2d at 439. Moreover, merely being present at the scene of the crime does not render that witness an accomplice witness. Druery, 225 S.W.3d at 498. Complicity with the accused in the commission of another offense separate from the charged offense does not make a person an accomplice. Id. In sum, "if the witness cannot be prosecuted for the offense with which the defendant is charged, or a lesser-included offense of that charge, the witness is not an accomplice witness as a matter of law." Id.; Paredes, 129 S.W.3d at 536. When the evidence is conflicting and it remains unclear whether the witness is an accomplice, the trial court should allow the jury to determine whether the witness is an accomplice witness as a matter of fact under an instruction defining the word "accomplice." Id. However, there must be some evidence of an affirmative act on the witness' part to assist in the commission of the charged offense before such an instruction is required. Kunkle, 771 S.W.2d at 440.
Yates maintains that both Perry and Anderson were accomplice witnesses, requiring an instruction as to each of them.
Yates argues that Anderson must be considered an accomplice, or otherwise, a "combination" would not exist due to lack of participants.
A combination is defined as "three or more persons who collaborate in carrying on criminal activities." TEX. PENAL CODE ANN. § 71.01(a) (West 2011). However, even though there is a requirement that there be three persons involved in a combination, there is no requirement that all three members of the combination participate in the underlying offense. In fact, it is not a defense to prosecution that the evidence shows a third person did not commit the object offense. See TEX. PENAL CODE ANN. § 71.03 (West 2011).
From the evidence presented at trial, a reasonable jury could have found that Yates and Perry had an agreement with Anderson that they would burglarize homes and then sell the stolen items to Anderson, who would in turn resell them to his customers. There is no evidence, however, that Anderson was present during any of the burglaries, that he was involved in the planning of them, or that he encouraged Perry and Yates to commit them. In fact, there is no evidence that Anderson even knew when the burglaries occurred. That Anderson purchased the items from Yates and Perry does not result in a finding that Anderson was an accomplice to the burglaries (this being a necessary prerequisite to charging Anderson with engaging in organized criminal activity with the object offense of burglary of a habitation). Anderson would not be an accomplice even if he had been aware that the items he purchased were the fruits of burglaries. The commission of a different "downstream" offense, even with knowledge of the prior criminal act charged against the defendant, will not suffice to warrant a finding of an accomplice. See Carrillo v. State, 591 S.W.2d 876 (Tex. Crim. App. [Panel Op.] 1979), overruled on other grounds, Reed v. State, 744 S.W.2d 112 (Tex. Crim. App. 1988). In short, one can be a member of a combination without being an accomplice and that is exactly what Anderson's role was in this case.
Yates also contends that Anderson could have been charged as a "party" to the offense pursuant to Section 7.02 of the Texas Penal Code, which states, in part,
See TEX. PENAL CODE ANN. § 7.02 (West 2011). In order to prove that a person is a party to the offense of engaging in organized criminal activity, the evidence must demonstrate that the defendant possessed the mental state required for commission of the underlying offense. Hart v. State, 89 S.W.3d 61, 63 (Tex. Crim. App. 2002). Moreover, the evidence would have to show that at the time of the offense, the individual was contributing in some part towards its execution. Escobar v. State, 28 S.W.3d 767, 774 (Tex. App.-Corpus Christi 2000, pet. ref'd). While the jury was free to infer that Anderson knew the jewelry he
In addition, Yates contends that Anderson could have been charged with the offense of criminal conspiracy arising from the commission of the burglaries. Section 15.02 of the Texas Penal Code states,
See TEX. PENAL CODE ANN. § 15.02 (West 2011). In this case, the record contains no evidence showing that Anderson agreed or conspired with Yates or Perry in an effort to burglarize the homes.
There was no necessity for the trial court to include an accomplice-witness instruction in its jury charge in reference to Anderson either as a matter of law or as a matter of fact.
B. Sufficiency of the Evidence
Arguing that Anderson's testimony was accomplice testimony, Yates maintains the nonaccomplice evidence is insufficient to support the jury's guilty verdicts. The State responds that Anderson should not be considered an accomplice, but even if this Court considered him as such, the remaining nonaccomplice evidence provides sufficient corroboration to support the convictions.
Because we have already found that Anderson was not an accomplice to the offenses alleged in the indictment against Yates, his testimony need not be corroborated by additional evidence. For the reasons below, we find the evidence sufficient to support the trial court's judgments of conviction.
1. Standard of Review
In evaluating legal sufficiency, we review all the evidence in the light most favorable to the trial court's judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.-Texarkana 2010, pet. ref'd). This standard is the same in cases of direct evidence and circumstantial evidence. Jones v. State, 229 S.W.3d 489, 496 (Tex. App.-Texarkana 2007, no pet.) (citing Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004)). Our rigorous legal sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917-18 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks opinion,
Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The "hypothetically correct" jury charge is "one that accurately sets out the law, is authorized by the indictment, does not unnecessarily 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." Id.
The State charged Yates in all five indictments with engaging in organized criminal activity with the object offense of burglary of a habitation. The trial court instructed the jury,
A person commits the offense of burglary of a habitation if, without the effective consent of the owner, he enters a habitation and commits or attempts to commit a felony, theft, or an assault. TEX. PENAL CODE ANN § 30.02(a)(3) (West 2011).
There is no reason to restate the summary of the evidence of the five burglaries for which evidence was given at trial. The evidence is ample to support the jury's conclusion.
As the State correctly points out, Yates asks this Court to review each case "in a vacuum and to disregard the evidence of the other four cases as well as the evidence of the Collin County burglary admitted under Rule 404(b)." Extraneous-offense evidence of other crimes, wrongs, or acts may not be admitted at trial in order to show the defendant acted in conformity with bad character. TEX. R. EVID. 404(b). Extraneous-offense evidence, if relevant apart from proving character conformity, may be admitted for other purposes: to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or accident. Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003). Although evidence of other crimes, wrongs, or acts may have a tendency to show character conformity, extraneous-offense evidence that has relevance apart from character conformity, such as rebuttal of a defensive theory, may be admissible. Id.
We agree with the State that, had it chosen to try the offenses in five separate trials, the evidence of each of the other four burglaries and the Collin County burglary would have been admitted pursuant to Rule 404(b) of the Texas Rules of Evidence in order to show identity and common
However, Article 38.14, known as the accomplice-witness rule, does not require the nonaccomplice evidence to be sufficient by itself to establish the accused's guilt beyond a reasonable doubt. Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994). Likewise, it is not necessary for the nonaccomplice evidence to connect an accused directly to the commission of the charged offense. Id. "All that is required is that there be some non-accomplice witness evidence which tends to connect the accused to the commission of the offense alleged in the indictment." Id. "The corroborating evidence need not be sufficient by itself to establish guilt; there simply needs to be `other' evidence `tending to connect' the defendant to the offense." Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007). Under the accomplice-witness rule, "the reviewing court eliminates all of the accomplice testimony from consideration and then examines the remaining portions of the record to see if there is any evidence that tends to connect the accused with the commission of the crime." Id. (citing Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001)).
Here, the trial court instructed the jury as follows:
With the exception of the Gammill and Campbell homes, at least one item from each house was connected to Yates either by (1) business records from Anderson's shop, (2) business records from Hunt County Guns and Ammo, (3) business records from B6UP Pawn & Gun Shop, or (4) their presence in the automobile Yates was in at the time of his arrest in Collin County. As to the Gammill burglary, a Tramadol pill, not belonging to a family member, was found on the porch of the Gammill home, and the State presented evidence that both Perry and Yates misused prescription medication. Moreover, officers discovered Tramadol pills that were present in the vehicle at the time Perry and Yates were arrested in Collin County. Further, Perry testified that he sold an Armory XDM 9 to Hunt County Guns and Ammo, and the acquisition records from the store verified the sale. In relation to the Campbell burglary, the Campbell's neighbor testified that she saw an older-model, blue SUV outside of the Campbell's home on the day of the burglary. Further, Perry testified that he and Yates traveled in an older-model, blue SUV when they began committing burglaries. Moreover, there was also documentary evidence from a Car Mart showing that Yates had purchased a 2004 Chevy Blazer SUV on August 25, 2014, not long before the burglaries began. Although the document did not reflect the color of the vehicle, the jury was free to infer, based on all of the evidence, that the 2004 SUV Yates purchased was the same vehicle used in the Campbell burglary and that it was the same vehicle the Campbell's neighbor saw outside of their home.
For these reasons, we find that sufficient evidence existed to support the jury's determinations that Yates committed the offense of burglary as alleged in the five indictments against him.
We turn next to the elements of engaging in organized criminal activity. Section 71.02 of the Texas Penal Code states, "A person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, the person commits or conspires to commit" one of a number of offenses, including the offense of burglary. TEX. PENAL CODE ANN. § 71.02(a)(1) (West Supp. 2016). Intent and knowledge are fact questions for the jury and (absent a confession) are almost always proven by circumstantial evidence. Robles v. State, 664 S.W.2d 91, 94 (Tex. Crim. App. 1984). "A jury may infer intent from any facts that tend to prove the combinations existence, including the defendant's words, acts, and conduct, and the method of committing the enumerated offense." Arredondo v. State, 270 S.W.3d 676, 682 (Tex. App.-Eastland 2008, no pet.) (citing Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999) (Myers, J., concurring)).
We have already stated that a combination means three or more persons who collaborate in criminal activities, even though the participants may not know the others' identities, the membership may change from time to time, and the participants may stand in a wholesale-retailer or other arms-length relationship in illicit distribution operations. See TEX. PENAL CODE ANN. § 71.01(a). "`Conspires to commit' means that a person agrees with one or
The offense of engaging in organized criminal activity requires that "the actor must not only agree to participate but must himself perform some overt act in pursuance of the agreement." Barber v. State, 764 S.W.2d 232, 235 (Tex. Crim. App. 1988); Pardue v. State, 252 S.W.3d 690, 700 (Tex. App.-Texarkana 2008, no pet.). The overt act, though, "need not be criminal in itself," and "acts that suffice for party liability — those that encourage, solicit, direct, aid, or attempt to aid the commission of the underlying offense — would also satisfy the overt act element of section 71.02." Otto v. State, 95 S.W.3d 282, 284 (Tex. Crim. App. 2003).
In this case, the trial court found that Perry was an accomplice to the crime, and it included in its jury charge an accomplice-witness instruction regarding Perry.
A reiteration of all the same evidence presented by Anderson is not necessary here, but a review of it will show that Anderson's nonaccomplice testimony corroborates much of Perry's testimony.
The jury is free to believe all, part, or none of the testimony of a witness. City of Keller v. Wilson, 168 S.W.3d 802, 820 (Tex. 2005). Although Anderson repeatedly denied that he knew the jewelry had been stolen, a rational juror could believe that Yates and Perry would burglarize homes and that they would take the stolen items to Anderson, who would then sell the jewelry, all the while knowing the jewelry had been stolen. The result of their endeavors was that all three of the men, including Yates, profited financially.
The evidence was sufficient to support the jury's verdicts. We overrule Yates' second point of error.
III. Improper Assessment of Attorney Fees
The trial court assessed $2,500.00 in attorney fees against Yates in this cause only. Attorney fees cannot be assessed against an indigent defendant unless there is proof and a finding that he is no longer indigent. Cates v. State, 402 S.W.3d 250 (Tex. Crim. App. 2013); Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010). In this case, there is no such evidence or finding. The trial court thus erred by assessing attorney fees against Yates. The proper remedy is to modify the judgment and remove the fee award. Cates, 402 S.W.3d at 252; Martin v. State, 405 S.W.3d 944, 947 (Tex. App.-Texarkana 2013, no pet.).
Accordingly, we modify the judgment of the trial court by deleting the fee assessment against Yates for the costs of his court-appointed attorney.
We affirm the trial court's judgment, as modified.
TEX. PENAL CODE ANN. § 71.03.