In the Matter of A.N.V. v.--Appeal from County Court at Law of Midland County

Opinion filed January 18, 2007

In The

Eleventh Court of Appeals

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   No. 11-05-00200-CV

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   IN THE MATTER OF A.N.V.

On Appeal from the County Court at Law

Midland County, Texas

Trial Court Cause No. 5322

M E M O R A N D U M O P I N I O N

This is an appeal from a judgment adjudicating a juvenile of delinquent conduct. The jury found that A.N.V. engaged in delinquent conduct by burglarizing two vehicles and by committing multiple instances of criminal mischief in which he destroyed windows. The trial court then ordered that A.N.V. be committed to the Texas Youth Commission for an indeterminate period of time not to extend beyond A.N.V.=s twenty-first birthday. We affirm.

A.N.V. presents two issues for review. He challenges the legal sufficiency of the evidence in the first issue and the factual sufficiency of the evidence in the second issue. The adjudication of a juvenile as a delinquent is based on the criminal burden of proof: beyond a reasonable doubt. Tex. Fam. Code Ann. ' 54.03(f) (Vernon Supp. 2006). Therefore, we apply the same standards of review in juvenile cases challenging the sufficiency of the evidence as we do in criminal cases. In re L.F.L.T.B., 137 S.W.3d 856, 858 (Tex. App.CEastland 2004, no pet.); In re Z.L.B., 115 S.W.3d 188 (Tex. App.CDallas 2003, no pet.); In re E.R.L., 109 S.W.3d 123 (Tex. App.CEl Paso 2003, no pet.); In re J.D.P., 85 S.W.3d 420 (Tex. App.CFort Worth 2002, no pet.). To determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414-15, 417 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15, 417; Johnson, 23 S.W.3d at 10-11. The jury, as the finder of fact, is the sole judge of the weight and credibility of the witnesses= testimony. Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 1981), art. 38.04 (Vernon 1979).

The record shows that several witnesses testified at trial. With respect to the vehicular burglaries, the evidence shows that an eyewitness who knew A.N.V. from school saw him hanging around the apartment complex on the day of the burglaries. This witness, Ronnie Velarde, testified that A.N.V. asked him if he wanted to help steal some Adecks@ and that, when Velarde refused, A.N.V. threatened him. Velarde subsequently saw A.N.V. steal three stereos and two speakers from vehicles at the apartment complex. Velarde stated that A.N.V. wanted to hide the stolen items in Velarde=s apartment but, instead, hid them in a bush by Velarde=s apartment. A.N.V. said that he would come back that night to get them. A.N.V. again threatened Velarde.

Later that evening, Officer Joel Bermea was dispatched to the apartment complex when the vehicle owners discovered the burglaries. Officer Bermea investigated these vehicular burglaries and confirmed that three stereos had been taken. Velarde told the officer that he had witnessed the crimes and gave a description, which he subsequently recanted, of the alleged assailant. Later that evening, Officer Bermea was again dispatched to the apartment complex when summoned by the complex security guard, Deputy Johnny Rodriguez.

When Officer Bermea arrived the second time, Deputy Rodriguez had recovered the stereos and had detained A.N.V. At this point in time, Velarde had informed Deputy Rodriguez and one of the complainants that A.N.V. committed the crimes. Velarde told Officer Bermea that he had not told the truth originally because he feared A.N.V. and A.N.V.=s older brother.

Deputy Rodriguez testified that Velarde informed him about the burglaries, the stereos, and A.N.V.=s involvement. Velarde and his mother brought the stereos to Deputy Rodriguez. While they were outside, they noticed A.N.V. and another boy walking up to the complex. Neither one lived at the complex, and it was after curfew. A.N.V. was wearing dark-colored clothing and carrying a black backpack. Inside the backpack was a dark blue beanie hat, a small screwdriver, and a Sprite. A.N.V. was detained until Officer Bermea arrived. A.N.V. testified that he did not steal the stereos but that Velarde had tried to sell him those stereos and speakers.

After reviewing the entire record, we hold that the evidence is both legally and factually sufficient to show that A.N.V., without the effective consent of the owners, broke into or entered vehicles with intent to commit theft and, thus, committed the offenses of burglary of a vehicle. See Tex. Pen. Code Ann. ' 30.04 (Vernon 2003).

The evidence with respect to the criminal mischief charges shows that, on February 8, 2005, several windows were shattered at a Mervyn=s and nearby stores. Several vehicles were also damaged. Later that month on February 21, A.N.V.=s brother, Abdon Joe Vigil Jr., and Abdon=s girlfriend, Amanda Hannick, were apprehended during another spree involving the shattering of windows. Officers located the suspect vehicle near Detective Manuel Beltran=s house where a pickup window had just been shattered. Detective Beltran, who had investigated the incidents in the Mervyn=s area, recognized that the suspect vehicle involved in the February 21 incidents was similar to the one caught on the Mervyn=s video surveillance on February 8.

When the vehicle was stopped on February 21, there were BBs all over the floorboard in the front and back. Empty air cartridges and a BB or pellet gun were also found in the vehicle. Abdon and Hannick were in the vehicle; A.N.V. was not. During questioning, Abdon and Hannick told Detective Beltran that they were involved with the criminal mischief in the Mervyn=s area. Abdon implicated A.N.V. in the Mervyn=s area criminal mischief. Hannick separately confirmed A.N.V.=s involvement. Both stated that Abdon was driving and that A.N.V. was shooting out the windows with his BB gun. Abdon and Hannick told Detective Beltran that A.N.V. had some BBs and a BB gun at his house that he had used to shoot out the windows at and near Mervyn=s.

Detective Beltran then went to A.N.V.=s residence and received consent from A.N.V.=s parents to search his room. CO2 cartridges and BBs were found in A.N.V.=s room, but no BB gun. At that time, A.N.V. told Detective Beltran that he owned a BB gun, but neither A.N.V. nor the officers were able to find it at the time of the search.

Hannick=s vehicle was impounded and driven by Mervyn=s to make a second video surveillance tape. Detective Beltran testified that the vehicles looked the same; Hannick disagreed, stating that the car in the first videotape was not hers. Both videotapes were introduced into evidence so that the jury could compare the tapes and determine whether the same vehicle was involved.

At trial, both Abdon and Hannick told a different story than they had told to Detective Beltran on February 21. At trial, Abdon testified that he, Hannick, and A.N.V. went to Wal-Mart on February 8 and then went home. He denied having anything to do with the Mervyn=s area incidents. Abdon did admit that he told Detective Beltran that A.N.V. had a BB gun and that A.N.V. shot out the windows at those businesses.

Hannick also recanted her previous statement. She testified at trial that none of them were involved with the Mervyn=s area shootings. Hannick admitted that Abdon shot out some windows on February 21 B when A.N.V. was not present. Hannick also admitted that she had previously told Detective Beltran that A.N.V. shot out the windows at and near Mervyn=s.

A.N.V. testified and denied any involvement with shooting out the windows. A.N.V. also denied having owned a BB gun in the past two or three years.

We hold, after reviewing the entire record using the standards announced above, that the evidence is both legally and factually sufficient to show that A.N.V. committed various acts of criminal mischief by damaging or destroying the tangible property of others. See Tex. Pen. Code Ann. ' 28.03 (Vernon Supp. 2006).

With reference to his issues on appeal, A.N.V. also urges that the accomplices= testimony was not corroborated. The Texas Family Code does not allow accomplice testimony in adjudication hearings unless it is corroborated. See Tex. Fam. Code Ann. ' 54.03(e) (Vernon Supp. 2006). Under Section 54.03(e), corroboration is sufficient if it tends to connect the juvenile to the alleged delinquent conduct. Id. The non accomplice evidence does not have to be sufficient in itself to support a conviction beyond a reasonable doubt, nor does it have to directly link the accused to the crime; it need only tend to connect A.N.V. to the offense. See McDuff v. State, 939 S.W.2d 607, 612 (Tex. Crim. App. 1997) (applying Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005), which is similar to Section 54.03(e)). To determine whether the corroboration is sufficient, we must eliminate from consideration the accomplice-witness testimony and then examine the other inculpatory evidence to ascertain whether the remaining evidence tends to connect the accused with the offense. Id.; Reed v. State, 744 S.W.2d 112 (Tex. Crim. App. 1988). Corroboration of an accomplice=s testimony is required only if the testimony is Aadduced in open court by live witnesses under oath.@ Bingham v. State, 913 S.W.2d 208, 210 13 (Tex. Crim. App. 1995). In Bingham, the court determined that the accomplice-witness rule does not apply to out of court statements. Id.

We must first ascertain which of the witnesses were accomplices. An accomplice is one who participates with the accused B before, during, or after the offense B to the extent that he or she can be charged with the offense or with a lesser included offense. Herron v. State, 86 S.W.3d 621, 631 (Tex. Crim. App. 2002). Mere presence at a crime scene does not make an individual an accomplice, nor is an individual an accomplice merely because he has knowledge about a crime and fails to disclose that knowledge. Cocke v. State, 201 S.W.3d 744, 748 (Tex. Crim. App. 2006).

As conceded by the State, Abdon and Hannick were accomplices in the criminal mischief charges. Both testified at trial. Excluding their in-court testimony from consideration, we hold that there is other evidence in the record tending to connect A.N.V. to the offense. Detective Beltran testified without objection regarding the out-of-court statements made by Abdon and Hannick. Both implicated A.N.V. in the shootings at and around Mervyn=s. Under Bingham, these out-of-court statements may be used to corroborate the accomplice testimony. Moreover, there was other evidence tending to connect A.N.V. to the crimes. A.N.V. admitted to Detective Beltran that he owned a BB gun; and, when his room was searched, CO2 cartridges and a box of BBs were found. We conclude that the non-accomplice evidence tends to connect A.N.V. to the crimes and is sufficient to corroborate the accomplices= testimony.

With respect to the burglary charges, A.N.V. argues that Velarde was an accomplice. We disagree. Although A.N.V. suggested that Velarde tried to sell him the stereos, there was no evidence indicating that Velarde participated in burglarizing the vehicles or committed a lesser-included offense with respect to those burglaries. A person commits the offense of burglary of a vehicle if, without the effective consent of the owner, he breaks into or enters a vehicle or any part of a vehicle with intent to commit any felony or theft. Section 30.04. Nothing in the record shows that Velarde broke into any vehicle or that he otherwise participated with A.N.V. in burglarizing the vehicles. Moreover, where the evidence regarding the witness=s status as an accomplice is conflicting, the jury must make that determination as a matter of fact. Blake v. State, 971 S.W.2d 451, 455 (Tex. Crim. App. 1998). In this case, the jury was free to determine that Velarde was not an accomplice. We overrule A.N.V.=s issues for review.

The judgment of the trial court is affirmed.

AUSTIN McCLOUD

SENIOR JUSTICE

January 18, 2007

Panel consists of: Wright, C.J.,

McCall, J., and McCloud, S.J.[1]

[1]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.