Wrighter, Jerry Shatae v. The State of Texas--Appeal from 109th District Court of Andrews County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JERRY SHATAE WRIGHTER, )

) No. 08-99-00109-CR

Appellant, )

) Appeal from the

v. )

) 109th District Court

THE STATE OF TEXAS, )

) of Andrews County, Texas

Appellee. )

) (TC# CR-3632-R)

)

O P I N I O N

In September 1997, Joe-Anthony Campos was shot and killed on a remote dirt road in Andrews County. Campos, Marcel Dean, and Jerry Wrighter had driven to the spot and parked. Campos and Dean got out of the car to relieve themselves and Dean shot Campos in the back of the head with a .44 caliber revolver. Appellant, who was driving, stayed in the car.

On September 15, 1997, a rancher found Campos=s decomposed body. The criminal investigation led to Dean, who made taped oral statements on October 6, 1997 and October 14, 1997. Appellant was arrested on October 6, 1997 in Hobbs, New Mexico and indicted on December 18, 1997 for the murder. Appellant pleaded not guilty to the crime and was tried on April 6, 1999 before a jury, who returned a verdict of guilty and sentenced him to 30 years in prison.

DISCUSSION

Speedy Trial

The first two issues raised are that the Appellant was denied a speedy trial. The Sixth Amendment to the United States Constitution, as extended to the states through the Fourteenth Amendment, guarantees the criminally accused the right to a speedy trial. Klopfer v. North Carolina, 386 U.S. 213, 223-24, 87 S. Ct. 988, 993-94, 18 L. Ed. 2d 1, 8 (1967). Likewise, the Texas Constitution guarantees the right to a speedy trial. Tex. Const. art. I, ' 10; Hull v. State, 699 S.W.2d 220, 221 (Tex.Crim.App.1985). In Texas, the inquiry as to whether the accused=s right to a speedy trial has been violated is the same under both the United States and the Texas constitutions. Floyd v. State, 959 S.W.2d 706, 709 (Tex.App. Fort Worth 1998, no pet.) We consider the first two issues together.

On review we balance four factors when analyzing the grant or denial of a speedy trial claim. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 116-17 (1972); Johnson v. State, 954 S.W.2d 770, 771 (Tex.Crim.App. 1997). These factors are: (1) the length of the delay; (2) the reason for the delay; (3) the defendant=s assertion of the right; and (4) prejudice to the defendant. Barker, 407 U.S. at 530; Johnson, 954 S.W.2d at 771.

The length of the delay is first. See Barker, 407 U.S. at 530-31, 92 S. Ct. At 2191. A finding of a Apresumptively prejudicial@ delay is a necessary precursor to inquiry into the remaining Barker factors. Doggett v. United States, 505 U.S. 647, 651-52, 112 S. Ct. 2686,

2690-91, 120 L. Ed. 2d 520 (1992), citing Barker, 407 U.S. at 530 31. Texas courts have generally found a delay beyond eight months to be presumptively prejudicial, thus triggering further analysis of speedy trial claims. See Harris v. State, 827 S.W.2d 949, 956 (Tex.Crim.App. 1992); Thompson v. State, 983 S.W.2d 780, 783 (Tex.App.--El Paso 1998, pet. ref=d).

The length of delay is measured from the date the defendant is arrested or formally accused. United States v. Marion, 404 U.S. 307, 313, 92 S. Ct. 455, 459, 30 L. Ed. 2d 468 (1971); Harris, 827 S.W.2d at 956. Appellant was arrested on October 6, 1997, and he was tried on April 6, 1999. The State concedes that a year and six-month delay triggers an analysis of the remaining Barker factors. Upon a finding that a presumptively prejudicial delay has occurred, the State bears the initial burden of justifying the delay. Emery v. State, 881 S.W.2d 702, 708 (Tex.Crim.App. 1994). The primary burden is on the State and the trial courts to ensure that defendants are afforded their right to a speedy trial. Chapman v. Evans, 744 S.W.2d 133, 136-37 (Tex.Crim.App. 1988). While intentional prosecutorial delay weighs heavily against the State, more Aneutral@ reasons for delay such as negligence or crowded court dockets are weighed less heavily against the State. Barker, 407 U.S. at 531, 92 S. Ct. At 2192.

The record reflects that the case was set for trial on three dates: July 14, 1998, August 18, 1998, and April 6, 1999. On July 1, 1998, the State sought and was granted a continuance of the July 14, 1998 setting due to vacation plans of a forensic expert witness. It appears from the record that the trial date was reset to August 18, 1998. Appellant asserts that the State received a second continuance of that setting; however, the record is most opaque as to what happened to that setting. We do note that at the pretrial hearing which took place immediately before the trial began, the State seemed to acquiesce to the contention that the State was given a second continuance in August 1998. Nevertheless, it does not appear and Appellant does not claim that there was any deliberate attempt by the State to delay the trial.

The State proclaims that most of the delay was caused by the pretrial tactics and motions filed by the defendant. These included discovery requests and other pretrial rulings, a change of venue, suppression of evidence motion, three speedy trial motions, and repeated efforts to obtain a bond. While some of the defensive pleading were pro forma, we fail to see how they could be considered dilatory and note that hearings and rulings were made on a majority of the defense=s pleadings. There is, lastly, a seemingly vainglorious argument that except for the brief time that the forensic expert was on vacation, the State had always been prepared to proceed. We will simply note that the record reflects otherwise. This factor weighs against the State.

Under the third Barker factor, the defendant must assert or demand his right to a speedy trial. See Barker, 407 U.S. at 528-29, 92 S. Ct. At 2191. The reviewing court may consider the Afrequency and force of the objections@ to the delay. See id. at 529, 92 S. Ct. at 2191. Appellant points out that he filed two motions for speedy trial on April 21, 1998 and August 20, 1998, respectively.

The record reflects nothing to show that Appellant asserted his right to a speedy trial during the months between the filing of his motion for a speedy trial in April and August 1998 and the trial court=s setting of the trial in February 1999. Between April and August, Appellant sought a reduction in bail and filed a Motion to Propound Written Jury Questionnaire to the Venire in Advance of Trial. Appellant=s only action after filing the motion for a speedy trial in August was to file more discovery motions and a request for a transcript. Appellant did not bring the motions for speedy trial to the trial court=s attention until the day of his trial. While Appellant made timely and repeated assertions, they are undercut by his failure to vigorously pursue the assertions, and because he waited until trial to pursue the assertions, this factor must weigh at least slightly against Appellant.

Finally, a defendant has the burden to prove some prejudice, although actual prejudice is not needed. See State v. Munoz, 991 S.W.2d 818, 826 (Tex.Crim.App. 1999). The last Barker factor is considered in the light of interests the speedy trial right is designed to protect: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired. See Barker, 407 U.S. at 532-33. The mere passage of time is however not prejudice and will not constitute the denial of speedy trial. See Lott v. State, 951 S.W.2d 489, 495 (Tex.App.--El Paso 1997, pet. ref=d). In Munoz, the Court held that defendant Munoz suffered no prejudice where he was incarcerated for seventeen months prior to trial, asserted at a pretrial hearing that he experienced emotional harm, and had memory-loss which impaired his defense. See Munoz, 991 S.W.2d at 826-29.

There was no evidence presented at the hearing on the motion--the defense simply maintained that Appellant had suffered incarceration and the anxiety and concern occasioned by such. While the trial court was not favored by any argument from the State, on appeal the State correctly points out that apart from Awhat would be expected from ordinary and inevitable pretrial incarceration,@ no other evidence was produced by the defendant. See Munoz, 991 S.W.2d. at 828. The defendant failed to meet his burden of showing prejudice and this factor must weigh against him.

Comparing the respective weights of the Barker factors, we conclude by a narrow margin that Appellant has failed to demonstrate that he was denied his constitutional rights to a speedy trial. Issues One and Two are overruled.

Statement Against Penal Interest

Issues Three through Six deal with the out-of-court statements of Marcel Dean made to police after his arrest, offered by the State to show Appellant=s guilt. At trial, Appellant objected to their admission on the grounds that they were hearsay and that their admission would violate federal and state Confrontation clauses. The State made no argument, nevertheless, the trial court overruled the defense objection and admitted the tape recordings and written transcripts in their entirety.

On appeal, the State argues that Appellant waived his right to assert those claims, and alternatively, that Dean=s statements were admissible as statements against penal interest under Texas Rule of Evidence 803(24). We find that with the exception of Issue Six, Appellant has preserved his claims. He has waived the sixth point of error because he raises Tex.Code Crim. Proc.Ann. art. 1.25 (Vernon 1977), for the first time on appeal. See Davila v. State, 930 S.W.2d 641, 650 (Tex.App.--El Paso 1996, pet. ref=d).

We review the trial court=s decision to admit a statement under Rule 803(24) under an abuse of discretion standard. See Dewberry v. State, 4 S.W.3d 735, 751 (Tex.Crim.App. 1999). We will disturb the judgment only when the trial court=s decision falls outside the zone of reasonable disagreement. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991). A statement against interest is a statement which when made tends to subject the declarant to criminal liability, and which a reasonable person in the declarant=s position would not have made unless he believed it to be true. See Tex.R.Evid. 803(24); Burks v. State, 876 S.W.2d 877, 904-05 (Tex.Crim.App. 1994). For a statement to be admissible under Rule 803(24), the trial court must determine two issues: (1) whether the statement in question tends to expose the declarant to criminal liability and (2) whether there are corroborating circumstances that clearly indicate the trustworthiness of the statement. See Dewberry, 4 S.W.3d at 751; Cofield v. State, 891 S.W.2d 952, 955 (Tex.Crim.App. 1994). The party seeking admission has the burden of producing corroborating evidence to prove the trustworthiness of the statement. Cofield, 891 S.W.2d at 955. The trial court should consider the following factors when ruling on the statement against interest exception: (1) whether the declarant=s guilt is inconsistent with the guilt of the defendant; (2) whether the declarant was so situated that he might have committed the crime; (3) the timing of the declaration; (4) the spontaneity of the declaration; (5) the relationship between the declarant and the party to whom the statement was made; and (6) the existence of independent corroborative facts. Dewberry, 4 S.W.3d at 751.

To be admissible against the accused as a statement against penal interest, a declarant=s out-of-court statement inculpating the accused must be truly self-inculpatory as well. Miles v. State, 918 S.W.2d 511, 515 (Tex.Crim.App. 1996), citing Williamson v. United States, 512 U.S. 594, 600-01, 114 S. Ct. 2431, 129 L. Ed. 2d 476 (1994). Whether a statement is in fact against the interest of the declarant must be determined from the circumstances of each case. Cofield, 891 S.W.2d at 956; Ramirez v. State, 987 S.W.2d 938, 944 (Tex.App.--Austin 1999, no pet.).

In the present case, Appellant contends that Dean=s statements are not against penal interest because Dean admitted to shooting Campos in self-defense, therefore the statement was an attempt to exculpate himself. Rule 803(24) does not allow admission of non self inculpatory statements, even if they are made within a broader narrative that is generally self inculpatory. Miles, 918 S.W.2d at 515. Appellant urges this Court to apply the reasoning in Miles to this case, however, we note that the circumstances in that case are distinguishable. In Miles, the declarant maintained that he was in no way a participant in the crimes committed, that he only remained with appellant because he needed transportation to go back home, and that he was merely present at the scene, not a party to the crime. Miles, 918 S.W.2d at 515. The Miles Court found that the declarant had not inculpated himself, therefore his statements were not admissible as statements against penal interest under Rule 803(24). Id. Here, Dean stated that he shot Campos. Dean did not deny that he committed the murder. Though Dean asserted a defense theory, his statement did not seek to minimize his participation, shift the blame to Appellant, nor did he seek to curry favor with authorities. See Zarychta v. State, 961 S.W.2d 455, 458 (Tex.App.--Houston [1st Dist.] 1997, pet. ref=d). Rather, Dean=s statements exposed him to prosecution for criminal liability, such that a reasonable person in his position would not have made the statement unless he believed it to be true. See Tex.R.Evid. 803(24). Dean=s statements were sufficiently against his interest as to be reliable. See Dewberry, 4 S.W.3d at 751; Cofield, 891 S.W.2d at 955. The first part of the exception test is therefore met.

We also find that there was sufficient independent corroborative evidence to support a finding as to the trustworthiness of Dean=s statements. At trial, seven separate witnesses testified consistently with Dean=s statements. Officer Craig testified that the victim=s body had been found at a country road and that he discovered bullet cartridges on the ground behind Palmer=s house. Officer Antonio De la Fuente testified that he received reports of a stolen vehicle that Dean had borrowed and a stolen gun from Dean=s grandmother. Tasha Moore stated that Dean was upset about his wife and came to her house with a black male in a pale-colored car. Nicole Palmer testified that Dean and Appellant came to her house, hung out with her husband then returned later, parking the car in the backyard. Ms. Palmer also testified that she saw Appellant trying to sell a gun. Orlando Barr and John Holmes each testified that Dean stated Appellant was present when Dean shot Campos. Holmes also testified that Appellant said that he drove to and from the murder scene, was present when Dean shot Campos, and that he later sold the weapon used to commit the murder. Sonny Wrighter testified that Appellant called him to say that Dean had just shot someone and that he had been in the car at the time of the shooting. Further, Dr. Karen Ross, who performed the autopsy of the victim, testified that Campos died from a gunshot wound to the head. Recovered bullet fragments from the autopsy were tested by Robert Poole, a firearms expert, and confirmed to be the same type of bullets as those found by Officer Craig behind Palmer=s house. We hold that the trial court=s ruling on the admissibility of Dean=s statements under Rule 803(24) was not outside the zone of reasonable disagreement and therefore was not an abuse of discretion.

Appellant also asserts, however, that the admission of Dean=s statements violated his right to confront witnesses testifying against him under Confrontation Clause of the Sixth Amendment, applicable to the states under the Fourteenth Amendment of the United States Constitution, Article I, section 10 of the Texas Constitution, and Article 1.05 of the Texas Code of Criminal Procedure.

Federal analysis of the right to confront does not necessarily apply to the state constitutional guarantees, and each claim should be analyzed separately. See Heitman v. State, 815 S.W.2d 681, 682 (Tex.Crim. App. 1991). However, an appellant waives the separate analysis of the federal and state constitutional rights, where the appellant fails to point out any meaningful distinctions between the two. See Lagrone v. State, 942 S.W.2d 602, 614 (Tex.Crim.App. 1997). In his brief, Appellant asserts that Texas provides Aprobably even greater protection@ than the federal constitution, but fails to make a distinction between the federal and the state right nor does Appellant offer any authority in support of his argument. An appellant Amust present argument and authority convincing us that his assertions of greater protection are in fact correct. . . . Without such argument or authority, not only is his argument unconvincing, it is also inadequately briefed.@ Sonnier v. State, 913 S.W.2d 511, 520 (Tex.Crim.App. 1995). We reach only Appellant=s federal claim.

In all criminal prosecutions, both state and federal, the accused has a right, guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution Ato be confronted with the witnesses against him.@ U.S. Const. amend. VI; Lilly v. Virginia, 527 U.S. 116, 123, 119 S. Ct. 1887, 1893, 144 L. Ed. 2d 117 (1999)(plurality opinion). AThe central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.@ Maryland v. Craig, 497 U.S. 836, 845, 110 S. Ct. 3157, 3163, 111 L. Ed. 2d 666 (1990). The admission of hearsay evidence amounts to a violation of the Confrontation Clause unless the evidence falls within a Afirmly rooted hearsay exception,@ which for the purposes of the Confrontation Clause reliability can be inferred. Idaho v. Wright, 497 U.S. 805, 816-17, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990). If a hearsay statement is admitted under a hearsay exception which cannot be considered Afirmly rooted,@ it must contain particularized guarantees of trustworthiness. Id.; see Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2539, 65 L. Ed. 2d 597 (1980). The Texas Court of Criminal Appeals has held that a statement against penal interest is a firmly rooted exception to the hearsay rule where an out-of-court statement was sufficiently against the declarant=s own interest to be reliable. Dewberry, 4 S.W.3d at 754; Guidry v.State, 9 S.W.3d 133, 149-150 (Tex.Crim.App. 1999).

In the present case, Dean=s out-of-court statements fall within a hearsay exception which is firmly rooted and are sufficiently against Dean=s own interest to be reliable. Further, the facts of this case are distinguishable from those in Lilly v. Virginia, in which Justice Stevens= plurality opinion held that an accomplice=s confession inculpating or shifting blame to the defendant was not within a Afirmly rooted@ exception to the hearsay rule for the purpose of the Confrontation Clause. Lilly, 527 U.S. at 133-34. Unlike Lilly, Dean never tried to shift the blame for the murder on to Appellant. In fact, Dean repeatedly stated that he wielded the gun and fired the shot that killed Campos. The admission of Dean=s statements did not violate the federal Confrontation Clause, therefore we overrule Appellant=s Issues Three, Four, Five, and Six with respect to this claim.

Sufficiency of the Evidence

Appellant challenges the legal and factual sufficiency of the evidence on appeal. Therefore, we will recite the pertinent facts adduced at trial in this case.

Dean and Appellant were living and working in Hobbs, New Mexico. Dean=s wife had left him and gone to Andrews, Texas. Upset by the news, Dean made plans to go to Andrews, and Appellant agreed to go with him. On September 8, 1997, Dean stole an M90 rifle, a .44 caliber handgun, and ammunition from his grandmother=s house. The two men promptly sold the rifle for crack cocaine and money to rent a car.

When Dean and Appellant arrived in Andrews, they looked for Dean=s wife at her relatives= homes, but did not find her. Dean and Appellant then stopped at the home of Tasha Moore, Dean=s sister-in-law, and her husband Joe-Anthony Campos in the late afternoon of September 9, 1997. When Moore denied knowing where his wife was, and when Dean left the house, Campos followed him. They talked in front of the house smoking crack, then Dean and Campos got into the car with Appellant. As Appellant drove, the conversation between Campos and Dean grew into an argument, and Dean threatened to kill Campos. Dean told Appellant to drive out to the country, and they stopped for a restroom break.

Appellant remained in the car when Dean and Campos got out to relieve themselves. Dean had taken the handgun, and when Campos turned, Dean shot Campos. Dean claimed that he shot Campos twice, once in the shoulder and in the head. Appellant was still in the car and yelled for Dean to get inside, then they drove away from Campos, who was still moving.

The two men drove to either Terrill, Texas or straight to Hobbs, where Appellant sold the murder weapon to an unknown man at a motel. They returned to Palmer=s house to park the car in the backyard, out of sight, and Dean dropped the cartridges for the gun in the grass by the car. They also telephoned several people to ascertain if the murder had been discovered.

Legal Sufficiency

In Issue Nine, Appellant challenges the legal sufficiency of the evidence to sustain his conviction, because Dean=s and Nicole Palmer=s statements were inadmissible as hearsay, no physical or scientific evidence linked him to the murder, and no testimony identified him at the scene of the murder. In reviewing a legal sufficiency of the evidence issue, this Court examines all of the evidence in a light most favorable to the verdict in order to determine whether any rational trier of fact could find the essential elements of the crime as alleged beyond a reasonable doubt. See Dewberry, 4 S.W.3d at 740; Lyon v. State, 885 S.W.2d 506, 516 (Tex.App.--El Paso 1994, pet. ref=d). Our duty is not to reexamine the evidence and impose our own judgment as to whether the evidence establishes guilt beyond a reasonable doubt, but only to determine if the findings by the trier of fact are rational. See Lyon, 885 S.W.2d at 516-17. Any inconsistencies in the evidence are resolved in favor of the verdict. See Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). This standard of review applies equally to both direct and circumstantial evidence cases. See Geesa v. State, 820 S.W.2d 154, 161 (Tex.Crim.App. 1991), overruled in part on other grounds by, Paulson v. State, 28 S.W.3d 570, 571 (Tex.Crim.App. 2000); Garcia v. State, 871 S.W.2d 279, 280 (Tex.App.--El Paso 1994, no pet.). Evidence is sufficient to convict under the law of parties where the defendant is physically present at the commission of the offense and encourages its commission by words or other agreement. Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App. 1994).

Besides Dean=s confession, the State presented testimony from witnesses and scientific evidence. In his confession, Dean told the police that he and Appellant drove to Andrews to find his wife, after Appellant told him that his wife was planning to leave Andrews. Appellant knew that Dean had a handgun and ammunition, was upset and had been drinking, and Adoing dope.@ Appellant was in the car as Dean and Campos argued and heard Dean threaten to kill Campos. After Dean shot Campos, Appellant drove off with Dean and did not attempt to aid Campos, who was still moving. Afterwards, Appellant sold the murder weapon for Dean and even bragged about the murder to others, including Donald Palmer. Dean told substantially the same story to Orlando Barr and John Holmes in the jail, and Appellant also told Holmes that he was at the murder and sold the gun.

Tasha Moore testified that she saw a black man in the car that Dean drove to her home. Nicole Palmer, Donald Palmer=s wife, confirmed that Dean and Appellant came to her home then returned the same day, parking the car in the back, and made several phone calls from her home. She also said that shortly afterwards, she heard Appellant talk about a gun used to murder someone and saw him trying to sell a gun. Sonny Wrighter testified his son, Appellant, called because Dean had shot someone while he was in the back of a car and wanted money and a ride back home. Kathryn Clifton testified that Appellant told her he called home from a payphone in Andrews to try to get home. Dr. Neal Haskell, a professor of forensic science, testified that by the presence of fly maggots and their colony development in Campos= body, the murder occurred in the evening of September 9, 1997.

A rational jury could have found that Appellant was present at the murder of Campos and assisted or encouraged Dean in the commission of the murder. We overrule Issue Nine.

Factual Sufficiency

In Issue Ten, Appellant also challenges the factual sufficiency of the evidence. In his brief, Appellant repeats the same arguments as for his point on legal sufficiency. The State argues that this is improper briefing of the point, which should be overruled without discussion according to McDuff v. State, 939 S.W.2d 607, 613 (Tex.Crim.App. 1997). Unlike the appellant in that case, Appellant states a legal standard, presents supporting argument, and thus has not waived his factual sufficiency claim.[1]

In examining the factual sufficiency of the evidence, this Court views all evidence, not just that favorable to the verdict, and only reverses the conviction if it is so against the great weight and preponderance of the evidence as to be manifestly wrong or unjust. See Taylor v. State, 921 S.W.2d 740, 746 (Tex.App.--El Paso 1996, no pet.). An appeals court does not substitute its conclusions for those of the jury, and it is the jury=s province to resolve conflicts in the testimony and judge the weight and/or credibility of a witness=s testimony. See Taylor, 921 S.W.2d at 746.

To contradict the evidence favorable to the verdict, Appellant offers Dean=s statements to Detective William Craig, his own statement to Detective Johnny Gonzales, Craig=s testimony in court, and the scientific evidence and testimony offered. Throughout his statement, Dean maintained that he, not Appellant, shot Campos. Mary Wrighter, Appellant=s mother, testified that Dean called her and told her that Appellant had Anothing to do with this.@

Appellant also asserted that he had not been in Andrews with Dean. He explained to Officer Gonzales that on September 9, 1997, except for a period of about an hour when Dean had left him behind, they had driven around to Lubbock, Big Spring, and Dallas for most of the day because they had been lost while on their way to Terrill, Texas. Appellant also negated his father=s testimony that he had called him to request money and a ride home because Dean had shot someone.

No physical evidence directly connected Appellant to the murder. Tasha Moore testified that when Dean came to her home, she saw a black man sitting in a pale, medium sized car parked in front of her house, but could not positively identify Appellant as that man. Officer Craig testified that he found tire tracks at the scene, comparable but not matchable to the car that Dean and Appellant had been seen in.

Appellant=s evidence either directly conflicts with or undermines the State=s evidence, but the jury is the trier of fact, and they alone are charged with resolving conflicts in the evidence and weighing the credibility of it. The evidence presented by Appellant is not such that the verdict is so against the great weight of the evidence as to be manifestly wrong or unjust. We overrule Issue Ten.

Jury Charge

In Issue Seven, Appellant contends that the trial court erred in denying his request for an application paragraph on the law of the parties in the jury charge. We review an error in a charge in two steps. First, we determine if an error exists in the charge. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984); Washington v. State, 930 S.W.2d 695, 698 (Tex.App--El Paso 1996, no pet.). In determining the existence of the error, we look at the charge as a whole and not as a series of isolated statements or parts of the charge standing alone. See Holley v. State, 766 S.W.2d 254, 256 (Tex.Crim.App. 1989); Washington, 930 S.W.2d at 698. Reversible error occurs only when a jury charge contains absolutely no reference to the law of the parties. See Chatman v. State, 846 S.W.2d 329, 331 (Tex.Crim.App. 1993). Second, we determine if sufficient harm resulted from the error to require reversal. See Almanza, 686 S.W.2d at 171; Washington, 930 S.W.2d at 698. We hold that the jury charge adequately applied the law of the parties to the facts.

The trial court properly stated the law of the parties in the abstract paragraphs and applied the law:

Now, if you believe from the evidence beyond a reasonable doubt that the defendant, JERRY SHATAE WRIGHTER, on or about the 15th day of September, 1997, in Andrews, County, Texas, did then and there, acting with intent to promote or assist the commission of the offense charged, solicit, encourage, direct, aid, or attempt to aid Marcell Deon Dean to intentionally or knowingly cause the death of Joe-Anthony T. Campos by shooting the said Joe-Anthony T. Campos with a deadly weapon, to-wit: a firearm, you will find the defendant guilty.

The trial court also instructed the jury in the immediately preceding paragraph of the application paragraph that A[m]ere presence alone will not constitute one a party to an offense.@ The trial court adequately applied the law of the parties to the facts when it tracked the language of the statute in the charge.[2] See Mayfield v. State, 716 S.W.2d 509, 516 (Tex.Crim.App. 1986), overruled in part on other grounds by, Solomon v. State, 49 S.W.3d 356, 368 (Tex.Crim.App. 2001). There is no error in the charge, and we overrule Issue Seven that the trial court did not adequately apply the law of the parties to the facts.

Corroboration of Accomplice Testimony

In Issue Eight, Appellant asserts that Dean=s statements are the testimony of an accomplice and must be corroborated by other evidence tending to connect him with the offense committed under Tex.Code Crim.Proc.Ann. art. 38.14 (Vernon 1979). We disagree. The Court of Criminal Appeals restricted the word Atestimony@ in Article 38.14 to the definition Aadduced in open court by live witnesses under oath.@ Bingham v. State, 913 S.W.2d 208, 210 (Tex.Crim.App. 1995). The court quoted with approval from Black=s Law Dictionary that testimony is:

Evidence given by a competent witness under oath or affirmation; as distinguished from evidence derived from writings, and other sources. Testimony is particular kind of evidence that comes to tribunal through live witnesses speaking under oath or affirmation in presence of tribunal, judicial, or quasi-judicial.

Id. at 210. Appellant=s Issue Eight that Dean=s statement had to be corroborated under Article 38.14 as an accomplice testimony is overruled.

The judgment of the trial court is affirmed.

February 13, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

[1] In McDuff, the Court held that the appellant waived his factual sufficiency claim by insufficient briefing, since the appellant merely stated an incomplete standard of review and presented no arguments on his point. McDuff, 939 S.W.2d at 613.

[2] AA 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 solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense . . . .@ Tex.Pen.Code Ann. ' 7.02(a)(2)(Vernon 1994).