Ronald Evan Richardson v. The State of Texas--Appeal from 70th District Court of Ector County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

RONALD EVAN RICHARDSON, )

) No. 08-03-00422-CR

Appellant, )

) Appeal from the

v. )

) 70th District Court

THE STATE OF TEXAS, )

) of Ector County, Texas

Appellee. )

) (TC# A-30,052)

)

O P I N I O N

Ronald Evan Richardson appeals his conviction by a jury of the offense of burglary of a building. The trial court assessed his punishment at 2 years in the Texas Department of Criminal Justice, State Jail Division, and a fine of $1,000, and ordered him to pay attorney=s fees, court costs, and restitution. Richardson contends in two issues that the trial court committed reversible error in failing to include an accomplice witness testimony charge when the prosecution depended upon the testimony of a witness who was an accomplice witness as a matter of law, and whose testimony was not corroborated, and that the evidence is insufficient to support his conviction because the accomplice witness=s testimony was not corroborated. We affirm.

Richardson contends in Issue One that the trial court erred by failing to submit an instruction that a witness, Crystal Keith, was an accomplice witness as a matter of law. 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 (Vernon 2005). A person who is merely present is not an accomplice; an affirmative act or omission is required. Blake v. State, 971 S.W.2d 451, 454 (Tex.Crim.App. 1998). An accomplice participates before, during, or after the offense. Id. One is not an accomplice for knowing about the crime and failing to disclose it. Id. A person is an accomplice if he or she could be prosecuted for the same offense as the defendant. Id. at 454-55.

Keith testified that she lived with Richardson. She indicated that Richardson, after about a month, started hitting her for saying or doing something wrong, and that she would never know in advance when he was going to do it. She related that Richardson and Cody Weathers talked about going to a place of business in Odessa called Trucks and Parts because they wanted to break in to get some rims to sell to get money. She said that she, Weathers, Weathers= girlfriend, and Richardson arrived at Trucks and Parts about midnight on the day of the burglary. She stated that Weathers was driving, but that his girlfriend took over once they arrived.

Keith testified that Richardson and Weathers entered Trucks and Parts through the side gate after cutting off the locks. She related that Richardson told her that they entered the storage building where the rims and tires were kept through the back door. Keith denied ever leaving the truck. Keith indicated that she and Weathers=s girlfriend just drove back and forth in front of the place for two to three hours. She related that Richardson and Weathers loaded a trailer and then hooked it up to the back of the truck. Keith denied doing anything to attempt to aid or encourage the commission of the offense. She stated that Weathers told his girlfriend to keep an eye out for police, but that he did not tell her to do anything. She said the only reason she was there was so that Richardson could keep an eye on her because she had threatened to leave him. Keith related that Weathers took over the driving again after the rims were loaded. She stated that they took the rims to a salvage yard in Abilene because Athey didn=t want it to come back on them here in their hometown.@ She acknowledged that she rode with them to Abilene, but did none of the driving. She insisted that she was never allowed to know how much money they received from this transaction.

Keith indicated that she did not recall when she went to the police to tell about this matter, but that she was five months pregnant when she did. She said she went to the police because her conscience said it needed to be told. She said she separated from Richardson and went to live with her parents.

On cross-examination, Keith insisted that she was present at the burglary because if she had told Richardson that she did not want to go, he would have beaten her. With respect to the several months= delay before she told police, she testified that she was still living with Richardson, and that she reported the matter to the police within a few days after separating from him. She related that when she was with Richardson, she was always with him or some member of his family, except when she went to the store to buy him cigarettes. She said that those trips were timed. She stated that she was scared because Richardson had threatened her family. She insisted that she was never allowed to use the telephone, but that no one had a gun to her head.

The record in this case shows no more than the mere presence of Keith at the scene of this offense and the disposition of the property, as well as her knowing about the offense and failing to disclose it. Therefore, the evidence shows that Keith could not have been prosecuted for this offense and was therefore not an accomplice witness. The trial court must submit an instruction that one is an accomplice as a matter of law when the evidence clearly shows a witness is an accomplice witness as a matter of law. Solis v. State, 792 S.W.2d 95, 97 (Tex.CrimApp. 1990). Because the evidence does not clearly show that Keith was an accomplice as a matter of law, the trial court, in an abundance of caution, submitted an accomplice as a matter of fact instruction, requiring the jury not to consider Keith=s testimony if it found she was an accomplice unless her testimony was properly corroborated. We hold that the trial court did not err in failing to submit an instruction that Keith was an accomplice as a matter of law. See Marlo v. State, 720 S.W.2d 496, 497 (Tex.Crim.App. 1986).

Richardson relies upon the cases of Marlo; Solis; Medellin v. State, 617 S.W.2d 229 (Tex.Crim.App. 1981); and Alexander v. State, 607 S.W.2d 551 (Tex.Crim.App. 1980). We find all of these cases to be distinguishable. In Marlo, the matter at issue was whether the trial court erred by failing to submit an issue as to whether certain witnesses were accomplices as a matter of fact. Marlo, 720 S.W.2d at 501. In the case at bar, the trial court submitted the accomplice as a matter of fact instruction that the trial court failed to submit in Marlo. We also note that in Marlo, the evidence established that after the defendant committed a murder, the witnesses, who were present at the time of the murder, stripped the victim of her jewelry, and assisted in disposing of her body and washing her blood from the bed of a truck. Id. at 498. They both said they were afraid of the defendant in that case. Id. The Court held that the trial court did not err in finding that the evidence did not establish that they were accomplices as a matter of law. Id. at 497. In the case at bar, Keith engaged in no affirmative action assisting Richardson and Weathers in the commission of the burglary. In Solis, the Court held that a witness was an accomplice as a matter of law because the witness had been indicted and already plead guilty to the offense for which the defendant was being tried. Solis, 792 S.W.2d at 97. In the case at bar, Keith had not been indicted, nor had she plead guilty to the offense with which Richardson was tried. In Medellin, the Court held that the evidence was sufficient to support the conviction of an individual as a party to the offense of delivery of heroin, who, when officers came to an apartment to buy heroin, told them that she had snorted some of it and that it was good; made them feel comfortable when they arrived when the party who ultimately delivered the heroin was absent and encouraged them to bring their money into the apartment; and went out of the apartment to get the money. Medellin, 617 S.W.2d at 231. In Alexander, the Court held that the evidence was sufficient to convict the defendant as a party even though he denied knowledge of a burglary, where the evidence showed that he drove the burglars to the scene of the burglary, waited for them, and then drove away with them and the television they took in the burglary. Alexander, 607 S.W.2d at 553. As we have noted earlier, Keith, unlike the defendants in Medellin and Alexander, was not shown to have engaged in any affirmative action in addition to being present at the scene of the offense and knowing about the offense and failing to timely disclose it. Even if there were evidence to support Keith=s guilt of the offense as a party, her testimony that she did those acts because of her fear of Richardson precluded her being an accomplice as a matter of law because it raised a fact issue as to whether she was a party and, therefore, whether she was an accomplice. See Marlo, 720 S.W.2d at 497. That being the case, the trial court properly submitted a jury instruction on accomplice as a matter of fact. Id. at 501. We overrule Issue One.

Richardson urges in Issue Two that the evidence is insufficient to support his conviction because Keith=s accomplice testimony was not corroborated. In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319-20, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). It is undisputed that the evidence, including the testimony of Keith, is sufficient to show that Richardson was guilty of the offense of burglary as charged except for Richardson=s assertion that it is insufficient because Keith was an accomplice witness whose testimony must be corroborated. We have held that Keith was not an accomplice as a matter of law, and have noted that the trial court submitted to the jury the issue of whether she was an accomplice as a matter of fact. The jury found Richardson guilty. We therefore assume that Keith was not an accomplice whose testimony was required to be corroborated. Thompson v. State, 537 S.W.2d 732, 734 (Tex.Crim.App. 1976); Jester v. State, 62 S.W.3d 851, 854-55 (Tex.App.--Texarkana 2001, pet. ref=d). As we have previously noted, Richardson=s argument is based upon the assumption that Keith=s testimony was required to be corroborated, assuming that she was an accomplice witness. He cites Tompkins v. State, 501 S.W.2d 132 (Tex.Crim.App. 1973) and Ysasaga v. State, 444 S.W.2d 305 (Tex.Crim.App. 1969). We find both of those cases to be distinguishable. In Tompkins, the Court held that evidence was insufficient to corroborate the testimony of an accomplice witness. Tompkins, 501 S.W.2d at 133. The Court simply stated that the witness was an accomplice witness without any further discussion. Id. There is nothing to indicate that Tompkins involved a witness whose status as an accomplice was submitted to the jury prior to the jury=s finding of guilty. In Ysasaga, the Court held that the evidence was insufficient to support the defendant=s conviction because the State=s circumstantial evidence case was weak, the record on appeal affirmatively showed that other testimony that would have cast additional light on the facts was available to the prosecution, and that the prosecution did not introduce such other evidence or satisfactorily account for its failure to do so. Ysasaga, 444 S.W.2d at 309. The Court of Criminal Appeals overruled that holding in Chambers v. State, 711 S.W.2d 240, 245 (Tex.Crim.App. 1986). The opinion does say that without an accomplice=s testimony the evidence was insufficient to show that Ysasaga was in possession of property taken from a burglarized warehouse. Ysasaga, 444 S.W.2d at 308. Although the jury had received an instruction on accomplice as a matter of fact, the Court held that the witness was an accomplice as a matter of law because he had bought property knowing that it was probably stolen and had aided the sellers to dispose of it at a profit. Id. As we have previously held, Keith was not an accomplice as a matter of law because there is no evidence of her active participation in the commission of the offense, other than her mere presence and her knowledge of the offense, and her failure to timely report it. We overrule Issue Two.

The judgment is affirmed.

May 19, 2005

JOHN HILL, Chief Justice (Ret.)

Before Panel No. 5

Barajas, C.J., Chew, J., and Hill, C.J.(Ret.)

Hill, C.J., (Ret.)(Sitting by Assignment)

(Do Not Publish)